. .." , ,,

DAVID H. FRY (SBN 1119276)

David.Fry@mto.com

~ MUNGER. TOLLES & OLSON LLP

.~~'--i-=

,
J

560 Mission Street. 27th Floor Twenty-Seventh Floor

San Francisco. CA 94105-2907

4 Tel.: (415) ,12-4000 Fax: (415) 512-4077

5

Q ) GERALD A. McINTYRE (SBN 181746) · 6 gmcintyre@nsclc.org

U

NATIONAL SENIOR CITIZENS LAW CENTER 7 3435 Wilshire Blvd.• Suite 2860
Los Angeles. CA 900 10-193 8

8 Tel.: (213) 674-2900

Fax: (213) 639-0934

9

ANNA RICH (SBN 230195)

10 arich@nsclc,.org

KEVIN PRINDIVILLE (SBN 235835)

I I kprindiville@nsclc.org

NATIONAL SENIOR CITIZENS LAW CENTER

12 1330 Broadway, Suite 525

Oakland, CA 94612

13 Tel.: (510) 663-1055

Fax: (510) 663-1051

14 Attorneys for Plaintiffs,

15

ROSA MARTINEZ, JIMMY HOWARD and all others similarly situated

16 Additional counsel listed on signature page

17

UNITED STATES DISTRICT COURT

18

NORTHERN DlSTRICT OF CALIFORNIA

19

SANF~COrO% 473 fi

20 , ROSA MARTINEZ and JIMMY HOWARD, on behalf of themselves and all
21 others similarly situated,

CASE NO. CLASS ACTION COMPLAINT

:22

Plaintiffs,

23

vs.

24 MICHAEL J. ASTRUE. Commissioner of Social Security.
25 Defendant.
26

27

28
6111792.2

CLASS ACTION COMPLAiNT: CASE NO.

Plaintiffs. through their attorneys. bring this action on behalf of themselves and all

') others similarly situated. On personal knowledge as to themselves and their activities. and on

3 information and belief as to all other matters, Plaintiffs hereby allege as follows:

4

NATURE OF THE ACTION .

5

I. Plaintiffs bring this class action to challenge Defendant Commissioner Michael J.

6 Astrue's (the "Commissioner") unlawful policy of suspending or denying Old Age, Survivors,

7 and Disability Insurance ("OASDI"), Supplemental Security Income ("SSI") and Special

8 Veterans Benefits ("SVB") benefits, and of refusing to certify payments to an individual as a

9 representative payee in these three benefit programs, on the basis of nothing more than the

10 existence of an outstanding felony arrest warrant for that person or for a person sharing the same

11 first and last name and Social Security Number ("SSN") or date of birth. The Commissioner

12 lacks any statutory authority for this policy. The provisions under which he purports to act, by

13 their express language, apply only when an individual is "fleeing to avoid prosecution, or custody

14 or confinement after conviction" for a felony. This language requires a finding of an intent to flee

15 for the specific purpose of avoiding prosecution. The Commissioner's misapplication of a

16 narrowly targeted statute has resulted in needless destitution for countless thousands of the most

17 vulnerable people in America - the elderly and the disabled - a majority of whom frequently

18 rely on these benefits for most, if not all, of their income. Some have also lost Medicaid coverage

19 associated with their SSI eligibility and others have lost their Medicare Part B coverage because

20 they were no longer able to pay the premium which had previously been taken out of their

21 monthly OASDI benefit.

22

2.· With this class action, Plaintiffs Rosa Martinez and Jimmy Howard seek

declaratory and injunctive relief- or, in the alternative, a writ of mandamus - on behalf of

24 themselves and all others similarly situated, against the SSA's unlawful policy of suspending

25 benefits based solely on the existence of an outstanding warrant.

26

JURISDICTION AND VENUE

27

3. Jurisdiction in this Court is proper because Plaintiffs' claims arise under the laws of

28 the United States. 28 U.S.c. § 1331. Specifically, this Court has jurisdiction over the subject

6111792.2

- 1-

CLASS ACTION COMPLAINT; CASE NO.

matter of this lawsuit pursuant to 42 U.S.c. §§ 405(g), I 009(b), 1383{c)(3), as well as 28 U.S.C'.

2 § 1361.

3

4.

Venue in this Court is proper pursuant to 28 U.S.c. § I 391(b) and 42 U.S.c.

4 § 405(g) because at least one named plaintitI resides within the Northern District of California.

5

5. Intradistrict Assignment: Pursuant to Civil Local Rules 3-2(c), 3-2(d), and 3-5(b),

6 this action is properly assigned to the San Francisco Division because Plaintiff Rosa Martinez

7 resides in San Mateo County and a substantial part of the events or omissions that gave rise to the

8 claims occurred in that county.

9

PARTIES

10

6. Plaintiff Rosa Martinez resides in Redwood City, San Mateo County, California

I I and had been receiving SSI Disability benefits since November 2005. Those benefits were

12 suspended on October I, 2008.

13

7. Plaintiff Jimmy Howard is 19 years old, resides in Santa Maria, California and

14 received SSI disability benefits until his benefits were suspended in November 2006. Earlier this

15 year, he applied to have his SSI benefits reinstated and was denied.

16

8. Defendant Michael J. Astrue is the Commissioner of Social Security. As such, he

17 is charged with administering and supervising all benefit programs administered by the SSA

18 nationwide, includingOASDI, SSI and SVB. The Commissioner is sued in his capacity as the

19 official charged with performing the statutory and regulatory duties of the SSA and with

20 supervisory responsibility over the SSA and its divisions, agents, employees and representatives.

21

LEGAL FRAMEWORK

22

9. Effective August 22, 1996, the Personal Responsibility and Work Opportunity

Reconciliation Act ("PRWORA"), Pub. L. No. 104-193,42 U.S.C. § 1382(e)(4), amended the

24 Social Security Act ("the Act") to authorize the SSA to suspend or deny SSI benefits to

individuals fleeing to avoid prosecution or custody or confmement after conviction for a felony.

26

10. The PRWORA provides, in relevant part:

27

(4)(A) No person shall be considered an eligible individual or

eligible spouse for purposes of this subchapter with respect to any

28

month if during such month the person is-

6111792.2

-2 -

CLASS ACTION COMPLAINT: CASE NO.

(i) fleeing to avoid prosecution, or custody or confinement after

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

:2

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, in

3

jurisdictions that do not define crimes as felonies, is punishable by

death or imprisonment for a term exceeding 1 year regardless of the

4

actual sentence imposed...

5 42 U.S.c. § 1382(e).

6

II. In 1999, Congress authorized the Special Veterans Benefits ("SVB") Program to

7 provide an SSI-like benefit for certain World War II veterans residing outside the United States.

8 Congress also extended the provisions of 42 U.S.C. § 1382(e)(4)(A)(i) to the SVB program,

9 except that the SVB provision applies only to felony charges within the United States while the

10 SSI provision applies to felony charges anywhere in the world. 42 U.S.C. § 1004(a)(2).

11

12. Effective in 2005, the Social Security Protection Act of2004, Pub. 1. No. 108-203,

12 ("SSPA") extended to the SSA's largest program, OASDI, the same provision prohibiting

13 payment of benefits to individuals who are "fleeing to avoid prosecution, or custody or

14 confinement after conviction" for a felony.l 42 U.S.C. § 402(x)(l)(A)(iv).

15

13. The same legislation prohibited the certification of payment of benefits to a person

16 as representative payee for OASDI, SSI or SVB benefits if that person is "fleeing to avoid

17 prosecution, or custody or confinement after conviction" for a felony. 42 U.S.C. §§

18 405G)(2)(C)(i)(V), 1007(d)(I)(E), 1383(a)(2)(B)(iii)(V).

19

14. In 2000, the SSA promulgated final regulations to implement the statutory

20 provision in the SSI program. 20 C.F.R. § 41 6. 1339(b). Those regulations provide that the

21 suspension of benefits:

22

is effective with the first day of whichever of the foIIowiI:\g months

is earlier - (i) The month in which a warrant or order ... is issued

23

by a court or other duly authorized tribunal on the basis of an

appropriate finding that the individual - (A) Is fleeing, or has fled,

24

to avoid prosecution . . . ; (B) Is fleeing, or has fled, to avoid

custody or confinement after conviction ... ; or (ii) The first month

25

during which the individual fled to avoid such prosecution, fled to

26

27

28

1 The OASDI provision, like the SSI provision, applies to prosecutions anywhere in the world.

6111792.2

·3-

CLASS ACTlON COMPLAlNT:

CASE NO.

avoid such custody or confinement ... if indicated in such warrant

2

or order, or in a decision by a court or other appropriate tribunal.

3 20 C.F.R. § 416.1339(b) (emphasis added).

4

15. In 2003, the SSA promulgated final regulations to implement the statutory

5 'provision in the.SVB program. 20 C.F.R. § 40S.SI0{b). These regulations are essentially the

6 same as the SS! regulations.

7

16. There are no implementing regulations for §§ 42 V.S.c. §§ 402(x)(I)(A)(iv),

8 405(j)(2)(C)(i)(V), lOO7(d)(l)(E), and 1383(a)(2)(B)(iii)(V).

9

SSA POLICY AND PRACTICE

10

17. Despite the plain language of the statute, and despite repeated and consistent

II rulings to the contrary, the SSA continues to interpret the Act to mean that a person is "fleeing to

I

12 avoid prosecution, custody, or confinement"·when there is an outstanding arrest warrant issued in

13 his or her name, even if there is no finding of "flight" undertaken with the specific intent to avoid

r

14 prosecution and, indeed, even if that person is unaware of the outstanding arrest warrant or the

I

15 pending charges.

16

18. This interpretation has been challenged by individual SSI recipients in at least eight

17 cases brought in federal district courts in California, Maine, Michigan, Minnesota, New York,

18 Oregon and Tennessee. In each of these cases - save one - the courts ruled that the SSA's

19 interpretation of the PRWORA was unlawful and either restored benefits to the beneficiaries or

20 otherwise instructed the SSA to comply with the courts' ruiings.2 In order to avoid adverse

I-
i

21 precedent, however, the SSA chose in each case not to appeal the district court's decision.

I

22

19. The one case in which the SSA prevailed on this issue at the district-court level

23 involved a case filed pro se in New York. Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005). In

24

2 While there may be cases that are umeported, a Westlaw search has identified only one instance 25 in which a court has upheld a denial of benefits based on the SSA's policy, and that decision was
overturned on appeal in the only appellate decision on the issue to date. Fowlkes·v. Adamec, 432 26 F.3d 90, 96-97 (2d Cir. 2005). Numerous decisions have found the SSA's policy to be contrary
to the statute and the regulations. See, e.g., id.; Re.fJv. As/rue, 2008 WL4277713 (D. Minn. Sept. 27 15,2008); Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July 10, 2008); Blakely v.
Commn'r Soc. Sec., 330 F.Supp.2d 910 (W.D. Mich. 2004); Hull v. Barnhart, 336 F.Supp.2d 28 liB (D. Or. 2004); Thomas v. Barnhart, 2004 WL 1529280 (D. Me. June 24,2004); Garnes v.
Barnhart, 352 F.Supp.2d 1059 (N.D. Cal. 2004).

6111792.2

- 4-

CLASS ACTION COMPLAINT:

CASE NO.

that case, the district court ruled against the plaintiff and the plaintitf appealed, creating the tirst

2 - and, to date, the only - opp0l1unity for an appellate court to address the issue. The United

3 States Court of Appeals for the Second Circuit found that "the plain language of the statute and its

4 implementing regulation" preclude the SSA from determining that a person is "fleeing to avoid

5 prosecution" based solely on the fact that there is an outstanding warrant for a person's arrest. Jd

6 at 96. Rather, there must be a "conscious evasion of arrest or prosecution." Jd "[BJenefits may

7 be suspended only as of the date of a warrant or order issued by a court or other authorized

8 tribunal on the basis ofa jinding that an individual has jied or was fleeingfrom justice" and a

9 person's flight must be "undertaken with a specific intent, i.e., to avoid prosecution." Jd. at 96-97

10 (emphasis added).

11

20. In an SSA Acquiescence Ruling following the Fowlkes decision, the SSA

12 acknowledged that the Second Circuit had "determined that for 'flight' to result in a suspension of

I3 benefits, it must be undertaken with the specific intent to avoid prosecution." SSA Acquiescence

14 Ruling 06-1 (2), Apr. 6,2006, available at http://www.ssa.gov/OP_Home/ruIings/ar/02/AR2006-

15 01-ar-02.htrnl. The SSA nevertheless has flouted that finding and the Second Circuit's further

16 recognition that the determination of "flight" must be made by the court issuing the warrant,

17 requiring only that "the Agency ... have some evidence that the individual knew his

18 apprehension was sought." Moreover, the SSA applies even this insufficient requirement only in

19 the three states comprising the Second Circuit.

20

21. Despite the Second Circuit's ruling, and the agency's acknowledgement of it, the

21 SSA continues to apply an unlawful interpretation of these statutory provisions, resulting in the

22 suspension or denial of benefits - and the threatened suspension and denial of benefits - to

23 thousands of eligible recipients of and applicants for SS1, SVB and OASDI benefits and results in

24 the denial or removal of certification as representative payees of countless numbers of individuals

25 seeking to serve as representative payee for a friend or family member.

26.

SSA'S APPLICATION OF ITS POLICY

27

22. The SSA implements this policy through a computer matching program which

28 compares SSA's databases with various federal, state, and local warrant databases.

6111792.2

-5-

CLASS ACTION COMPLAINT: CASE NO.

23. The SSA treats a warrant as having been issued to a particular benefits recipient if

2 the databases match the person's first and last names and either (i) his or her social security

3 number or (ii) his or her date of birth.

4

CLASS ACTION ALLEGATIONS

5

24. Plaintiffs bring this action as a class action pursuant to Rule 23(b)(2) of the Federal

6 Rules of Civil Procedure.

7

25. The class consists of:

8

All persons whose SS1, SVB or OASDI benefits have been

suspended or denied, or who are threatened with the suspension or

9

denial of such benefits, for allegedly "fleeing to avoid prosecution,

or custody or confinement after conviction" for a felony or who are

10

not permitted to serve as representative payees for SSJ, SVB or

. OASDI benefits for allegedly "fleeing to avoid prosecution, or

11

custody or confinement after conviction" for a felony.

.12

26. The class is so numerous that joinder of all members is impracticable. While the

13 exact number of class members can only can be obtained through appropriate discovery, on

14 information and belief, there are over one hundred thousand class members.

15

27. There are questions of law and fact common to all class members that predominate

16 over questions only affecting individual class members. Such questions include, among others:

17 (a) whether the SSA can determine that an individual is "fleeing to avoid prosecution, or custody

18 or·confinement after conviction" for a felony under 42 U.s.C. §§ 402(x)(I)(A)(iv),

19 405G)(2)(C)(i)(V), 1004(a)(2), 1007(d)(I)(E), 1382(e)(4)(A) or l383(a)(2)(B)(iii)(V), absent a

20 finding that the individual had the intent to flee for ~he specific purpose of either avoiding

21 prosecution for a felony or avoiding custody or confinement after conviction of a felony and that

22 the individual had the capacity to form such an intent; and (b) whether the Commissioner has

23 engaged in a pattern of suspending or denying class members' benefits and denying or revoking

24 certification as a representative payee for allegedly "fleeing to avoid prosecution, or custody or

25 confinement after conviction" for a felony without first making a finding aslo the individual's

26 intent and capacity to form such intent.

27

28. Plaintiffs' claims are typical of the claims of all class members, and arise from the

28 same course of conduct by the Commissioner. The declaratory and injunctive relief sought is

6111792.2

- 6-

CLASS ACTION COMPLAINT: CASE NO.

common to all class members. In addition. the Commissioner has acted and continues to act on

2 grounds generally applicable to all class members. thereby making injunctive and declaratory

3 relief appropriate to the class as a whole.

4

29. A class action is superior to other available methods for a fair and efficient

5 adjudication of this matter in that the prosecution of separate actions by individual class members

6 would unduly burden the Court and create the possibility of conflicting decisions.

7

30. Plaintiffs will fairly and adequately protect the interests of the class members.

8

31. The named plaintiffs and the proposed class are represented by Munger, Tolles &

9 Olson LLC, National Senior Citizens Law Center, Urban Justice Center, and Disability Rights

10 California, whose attorneys are experienced in class action litigation and will adequately

I I represent the class.

I

I

12

INDIVIDUAL PLAINTIFF ALLEGATIONS

13 Plaintiff Rosa Martinez

14

32. After working for a number of years as a nursing assistant and in retail sales,

15 Plaintiff Rosa Martinez began receiving SSI disability benefits in November 2005. She suffers

16 from Sharp's syndrome (a form of mixed connective tissue disease), fibromyalgia, hepatitis,

17 depression, diabetes and sleep apnea and is no longer able to work. Her SSI benefit of $870 per

18 month is Ms. Martinez's only source of income. Without it she would be unable to pay for her

19 basic living expenses.

20

33. On December 10,2007, an SSA employee handed Ms. Martinez a letter (attached

21 hereto as Exhibit A) stating that the agency would be suspending her SSI benefits effective

22 January 2008 because "the law prohibits us from paying Supplemental Security Income to

persons who have an outstanding arrest warrant for a crime which is a felony." The notice went

24 on to state that there was an outstanding arrest warrant for a felony drug crime issued in her name

25 by the Miami Dade Police Department in Florida on July 14, 1980. Ms. Martinez explained that

26 she had never been to Miami and had never been arrested or charged with a crime and that this

27 had to be a mistake. The SSA claims representative told Ms. Martinez that this could not be

28

6111792.2

·7·

CLASS ACTION COMPLAINT:

CASE NO.

appealed and refused to give her an appeal form and told her she would simply have to get proof

2 that there was no warrant.

34. Ms. Martinez obtained an SSA appeal form at the Legal Aid Society of San Mateo

4 County ("Legal Aid") and on December 11,2007, the day after she received notice of the

5 proposed suspension, Ms. Martinez filed a Request for Reconsideration at the local SSA office to

6 appeal the proposed suspension (attached hereto as Exhibit B). In the reconsideration request she

7 stated, "I have never been in Miami Dade," and requested that the reconsideration be by means of

8 a formal conference. SSA regulations require that she be afforded the opportunity for a formal

9 conference where she would have the right to confront adverse Witnesses and request that

10 subpoenas be issued for relevant evidence and Witnesses. 20 C.F.R. § 416.1413(c).

II

35. On the very same day, SSA issued a Notice of Reconsideration affirming the initial

12 determination (attached hereto as Exhibit C). The notice stated, "In order for Social Security to

13 reinstate your benefits you must provide the original document which lists The Warrant Number,

14 The issuing agency/county, and the date the warrant was rescinded or satisfied. If you believe the

IS warrant was issued in error, Social Security must have an original document that states the

16 warrant was issued in error and does not pertain to you at all. It must state the date the warrant

17 was rescinded. This is the only way this case can be resolved."

18

36. On December 19,2007, Ms. Martinez filed a request for an administrative law

19 judge hearing.

20

37. Ms. Martinez did not receive her scheduled SSI benefits at the beginning of January

21 and February, 2008. As a result she was left without any income and managed to get by only

22 With loans from her brother and friends. It was only through the intervention of U.8.

23 Representative Anna Eshoo that her benefits were restored later in February.

24

38. On April 15, 2008, the SSA sent Ms. Martinez another notice similar to the

25 December notice stating that they planned to stop her SSI payments beginning in May 2008.

26 Attorney Christopher Douglas of the Legal Aid Society of San Mateo County requested

27 reconsideration of this determination Within the ten-day period for receiving continued benefits

28 and requested that the appeal be by means of a formal conference.

6111792.2

-8-

CLASS ACTION COMPLAINT: CASE NO.

39. Nonetheless, the SSA suspended Ms. Martinez's benefits on May 1,2008. On May 2 5, 2008, Ms. Martinez and her attorney went to the Redwood City SSA office to demand that she 3 receive her SSI benefits for May and that she be given a formal conference prior to suspension of 4 her benefits. After considerable dispute as to whether she had a right to a formal conference or 5 whether witnesses could be subpoenaed, the claims representative spoke with her supervisor and

6 agreed that Ms. Martinez had not received due process and agreed to issue the SSI payment for

7 May. The SSA representative reiterated that Ms. Martinez needed to provide a statement on the

8 letterhead of Miami Dade County to the effect that plaintiff was not the person they were seeking.

9

40. No formal conference was ever scheduled or held and no Administrative Law Judge

10 hearing was ever scheduled or held.

11

41. The SSA sent a Notice of Reconsideration dated August 25, 2008 in response to the

12 December 11, 2007 appeal denying her request for reconsideration and suspending her benefits

13 effective November 1, 2005. The notice stated that Ms. Martinez had failed to provide evidence

14 that she was not the Rosa Martinez who was wanted in Miami. This was followed by a Notice of 15 overpayment dated September 2, 2008 stating that she had been overpaid in the amount of

16 $27,365.50 and demanding that she repay that amount.

17

42. Ms. Martinez did not receive her SSI benefits for October 2008. Her SSI payment

18 of $870 per month has been her only source of income and she now has no income and no savings

19 to meet her basic needs.

20

43. Ms. Martinez also suffered, and continues to suffer, significant stress and anxiety as

21 the result ofthe repeated threats to suspend, and the actual suspensions, of her SSI benefits.

22 Since first receiving notice of the suspension of her benefits, she has suffered a deepening

depression. She has also had trouble sleeping and her appetite has decreased, causing her to lose

24 weight.

25

44. Ms. Martinez has never been to Miami Dade County and was living with her father

26 in Chicago, Illinois at the time the warrant was issued, while her husband, Gregg Sharp, was in

27 basic training for the United States Army. She used her husband's name at the time and was

28

611 1792.2

-9-

CLASS ACTION COMPLAINT: CASE NO.

known as Rosa M. Sharp. She continued to use that name - even after her divorce - until she

') became a United States citizen in 2000.

3 Plaintiff .Jimmy Howard

4

45. Plaintiff Jimmy Howard is 19 years old and resides in Santa Maria, California,

5 where he lives in a group home for individuals with developmental disabilities. Mr. Howard has

6 been diagnosed with mental retardation and other mental impairments.

7

46. Mr. Howard received SSI benefits as a child based on his disabilities. He is a client

8 of the Tri-Counties Regional Center ("TCRC"), which contracts with the State of California to

9 provide services to children and adults with developmental disabilities. Because he was a minor

I0 at the time and could not manage his own funds, TCRC served as his representative payee and

II received all payments and communications on his behalf.

12

47. In a notice dated October 17, 2006, the SSA notified TCRC that Mr. Howard' s

13 benefits would be suspended because of a 2001 arrest warrant from Butler County, Ohio,

14 stemming from an assault charge. The notice went on to say, "The law prohibits us from paying

15 Social Security benefits to individuals who have an outstanding arrest warrant for a crime which

16 is a·felony." The notice also stated that he needed to pay back an overpayment of $26,826 within

17 30 days. The notice made no mention ofthe right to continuation of benefits pending appeal and

18 made no mention of the right to a formal conference or an informal conference if the payee chose

19 to appeal on his behalf. Mr. Howard did not receive a copy of the notice. TCRC did not appeal

20 and his benefits ceased as ofNovember 2006.

21

48. After Mr. Howard turned 18, he was referred to Katherine MottarelIa, an attorney

22 with the Office of Clients Rights Advocacy in Santa Barbara. Ms. Mottarella proceeded to gather

23 information with respect to the charges and related events in Ohio. On October 22, 2007, Ms.

24 Mottarella filed a request for reconsideration ofthe suspension together with a request that the

25 SSA find good cause for missing the 60 day deadline for appeal pursuant to 20 C.F.R. § 416.1411

26 based on Mr. Howard' s mental limitations and the misstatement of the law in the October 2006

27 notice.

28

6111792.2

- 10-

CLASS ACTION COMPLAINT: CASE NO.

49. On March 7, 2008, Mr. Neil Ohlenkamp, the District Manager of the SSA oftice in

2 Santa Barbara sent Ms. Mottarella a letter stating that the request for reconsideration was not

3 timely and that good cause for late filing had not been established. The letter contained no notice

4 of appeal rights.

5

50. On May h 2008, attorney Mottarella filed a request for an administrative law judge

6 hearing to review the March 2008 determination. No hearing has yet been scheduled

7

51. On March 31, 2008, Mr. Howard, with the assistance of Ms. Mottarella, filed a new

8 SSI application which was denied in a notice dated June 18,2008 stating "We cannot pay you SS!

9 payments for March 2008 on because the law prohibits us from paying Supplemental Security

10 Income to individuals who have an outstanding arrest warrant for a felony."

II

52. A request for reconsideration ofthe denial was filed on July 20, 2008, stating as the

12 reason for appeal: "I was not fleeing from Ohio. My mother took me to California." So far there

13 has been no response to this request for reconsideration.

14

53. At the time of the charges in this case, Mr. Howard was twelve years old and living

IS with his family in a trailer park in Butler County, Ohio, having been brought there recently by his

16 mother and stepfather to be with the stepfather's family. He did not get along with the stepfather.

17 According to the records of the Butler County Juvenile Court, Mr. Howard was reported as a

18 possible runaway and was found at a food market on September 23, 200 I. .He was charged as a

19 delinquent under Ohio law for acts that would constitute criminal damaging, theft and breaking

20 and entering. According to a complaint filed in Juvenile Court, on September 25, 2001 , while he

21 was being held at the detention center, "Howard kicked staff member Joyana Randolph while he

22 was being mechanically restrained." The court records state that at the time of this event he was .

23 four feet seven inches tall and weighed 85 pounds. He was once again charged as a delinquent

24 child, this time for an assault. It would be a felony under Ohio law if it were committed by an

25 adult, but not when the alleged wrongdoer is a twelve-year-old.

26

54. On October 1,2001, Mr. Howard appeared in Juvenile Court and was ordered

27 released from detention and a competency evaluation was ordered to determine his ability to

28 assist with his defense. Sometime between that appearance and November 16, 2001, Mr.

6111792.2

- 11 ~

CLASS ACTION COMPLAINT: . CASE NO.

1I0ward's mother broke up with his steplather and moved to California, taking her twelve-year-

~ old son with her. Mr. Howard did not appear in court on November 16,200 I, and a bench

3 warrant was issued.

4

55. TCRC has been paying the cost of Mr. Howard's group horne with funds from the

5 California Medi-Cal program. However, Mr. Howard has been showing considerable progress

6 lately and has been successfully working in a supported employment program. He appears to be

7 ready to move to a more independent living environment, but is financially unable to do so

8 without his SS! benefits.

9

FIRST CAUSE OF ACTION

10

FOR DECLARATORY AND INJUNCTIVE RELIEF FOR

11

VIOLATION OF THE SOCIAL SECURITY ACT

AND ITS IMPLEMENTING REGULATIONS

12 56. Paragraphs I-53 are each re-alleged and incOlporated as i[fully set forth herein.

13 57. The Social Security Act and the regulations promulgated thereunder, 42 U.S.C. §§

14 402(x)(I)(A)(iv), 4050)(2)(C)(i)(V), 1004(a)(2), 1007(d)(I)(E), 1382(e)(4)(A)(i),

i5 1383(a)(2)(B)(iii)(V) and 20 C.F.R. § 416.l339(b), prohibit the Commissioner from suspending

16 or denying benefits or refusing to certify an individual as a representative payee for allegedly

17 fleeing to avoid felony prosecution, or custody or confinement after conviction of a felony, on the

18 basis of an outstanding arrest warrant without a finding by a court that the claimant is "fleeing"

19 with the specific intent to avoid prosecution, custody, or confmement.

20 58. By failing to make such a finding, the Commissioner has acted and continues to act

21 in violation of the Social Security Act and the regulations promulgated thereunder.

22 SECOND CAUSE OF ACTION

MANDAMUS 24
59. .Paragraphs I-56 are each re-a1leged and incorporated as if fully set forth herein.
25 60. The Commissioner has a nori-discretionary statutory obligation to make benefit
26 determinations in accordance with the Social Security Act, as amended, and its implementing
27 regulations. Among other things, the Commissioner is required to award benefits to applicants
28 who are qualified under the governing statutory provisions and regulations. In the event that

6111792.2

-12 -

CLASS ACTION COMPLAINT: CASE NO.

Plaintiffs do not otherwise have an adequate legal remedy, mandamus should issue compelling

2 the Commissioner immediately to: (l) cease denying or suspending benetits or denying

3 certitications as representative payees under 42 U.S,c. §§ 402(x)(l )(A)(iv), 405G)(2)(C)(i)(V),

~ 1004(a)(2), I 007(d)(1 )(E), I 382(e)(4)(A) and 1383(a)(2)(B)(iii)(V), without first determining that

5 the individual was fleeing with the specific intent to avoid prosecution or custody or continement

6 after conviction for a felony; and (2) vacate all prior such suspensions and denials of benefits or

7 denials of certification as representative payee, in which there was no prior determination that the '

8 individual was fleeing with the specific intent of avoiding prosecution or custody or confine for a

9 felony.

10

PRAYER FOR RELIEF

II

61. WHEREFORE Plaintiffs respectfully request that the Court:

I

12

a. Assume jurisdiction over this matter;

r

13

b. Certify this action as a class action;

14

c. Declare that Defendant's interpretation and implementation of 42 U.S.C.

15

§§ 402(x)(l)(A)(iv), 405G)(2)(C)(i)(V), 1004(a)(2),

16

1007(d)(l)(E), I 382(e)(4)(A) and 1383(a)(2)(B)(iii)(V) are unlawful;

17

d. Preliminarily and permanently enjoin the Commissioner from continuing to

18

implement 42 U.S.c. §§ 402(x)(J)(A)(iv), 405(j)(2)(C)(i)(V), 1004(a)(2),

19

1007(d)(I)(E), 1382(e)(4)(A) and 1383(a)(2)(B)(iii)(V) in a manner

20

inconsistent with the law;

21

e. Preliminarily and permanently enjoin the Commissioner from making

22

determinations to suspend or deny SSI, SVB and OASDI benefits or to deny

23

certification as a representative payee for such benefits pursuant to 42 U.S.C.

24

§§ 402(x)(l)(A)(iv),405G)(2)(C)(i)(V), 1004(a)(2), I 007(d)(J )(E),

25

1382(e)(4)(A) and 1383(a)(2)(B)(iii)(V), based solely upon the existence of

26

an arrest warrant and absent a finding that an individual is fleeing with the

27

specific intent to avoid prosecution or custody or confinement after

28

conviction for a felony;

6111792.2 .

- 13-

CLASS ACTION COMPLAINT: CASE NO.

I,.
I

2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 /I 25 II 26 II 27 II 28 II

f. Preliminarily and pennanently enjoin the Commissioner immediately to

redetermine and re-adjudicate all determinations to suspend or deny SSI,

SVB. and OASDI benefits and all determinations to deny certification as

representative payee for such benefits made pursuant to 42 U.S.c.

§§ 402(x)(l)(A)(iv), 405(j)(2)(C)(i)(V), 1004(a)(2), 1007(d)(l)(E),

1382(e)(4)(A) and 1383(a)(2)(B)(iii)(V), and to reverse all such

determinations unless made 'on the basis of a finding by a court that the

individual was fleeing with the specific intent to avoid prosecution or clistody

or confinement after conviction for a felony;

g. Issue a writ of mandamus compelling the Commissioner immediately to: (I) cease denying or suspending benefits or denying certifications as

I
I
!

representative payeees under 42 U.S.C. §§ 402(x)(J)(A)(iv),

405(j)(2)(C)(i)(V), I004(a)(2), 1007(d)(l )(E), I382(e)(4)(A) and

r

1383(a)(2)(B)(iii)(V), without fust detennining that the individual was

fleeing with the specific intent to avoid prosecution or custody or

I

!
confinement after conviction for a felony, and (2) vacate all prior such

suspensions and denials of benefits and denials of certification as

representative payee, in which there was no prior determination that the

individual was fleeing with the specific intent of avoiding prosecution or

custody or confme for a felony;

h. Award Plaintiffs costs, disbursements: and reasonable attorneys' fees,

including, without limitation, the costs and fees authorized by 28 U.S.C.

§ 2412;

6111792.2

- 14-

CLASS ACTION COMPLAINT: CASE NO.

l. Grant Plaintiffs such other and further relief as the Court may lind just.

2

proper, and equitable.

3 DATED: October 15,2008
4
5
6
7
8 Of Counsel:
9 WILLIAM G. LIENHARD wlienhard@urbanjustice.org
10 EMILIA SICILIA esicilia@urbanjustice.org
II JENNIFER PARISH jparish@urbanjustice.org
12 URBAN JUSTICE CENTER 123 William Street, 16th Fl.
13 New York, NY 10038 Tel.: (646) 602-5668
14 Fax: (212) 533-4598
15 MARILYN HOLLE (SBN 61530) marilyn.holle@disabilityrightsca.org
16 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd. Suite 902
17 Los Angeles, CA 900 I 0-2522 Tel: (213) 427-8747
18 Fax: (213) 427-8767
19
20
21

MUNGER. TOLLES & OLSON LLP DAVIDH. FRY
CHRISTOPHER A. DOUGLAS (SBN 239556) cdougJas@legaiaidsmc.org M. STACEY HAWVER (SBN 146012) mshawver@lega1aidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY 521 East 5th Avenue San Mateo, CA 94402 T: (650) 558-0915 F: (650) 558-0673

23 24 25 26 27 28
6111792.2

- 15 -

CLASS ACTION COMPLAINT: CASE NO.

EXHIBIT A

I I

Social Security A "'ministration

VIFF Hi

Supplemental Security Income
Notice of Planned Action

I

SOCIAL SECURITY

I

601 ALLERTON ST 2ND FL

REDWOOD CITY CA 94063

Claim Number:~iR~ed~a~c~~d ________

December 10, 2007

ROSA MARTINEZ 334 REDWOOD AVE
APT 5 REDWOOD CITY CA 94061

We are writing to tell you about changes in your SUpplemental

I

Security Income (SSI) payments. The following chart shows the SSI money due you for the months we changed. As you can see

L

from the chart, we are changing your payments for past and .

future months. The rest of this letter will tell you more about

this change.

Your Payaenta Will Be Changed Aa Followa

From: November 2005 and continuing Amount Due: $0.00

We will stop your payments beginning January 2008.

Why Your Payments Changed

.We cannot pay you SSI payments for January 2008 and continuing because the law prohibits us from paying Supplemental Security
Income to persons who have an outstanding arrest warrant for:

• a crime which is a felony (or, in Jurisdictions that do not define crimes as felonies, a crime .that is punishable by death or imprisonment for a term exceeding 1 year), or

• a violation of a condition of probation or parole under Federal or State law.

Your Payment Ia Based On The.e Fact.

• Our records show that the following warrant for your arrest

I

was issued for a crime which is a felony:

Issued by: MIAMI DADE POLICE DEPARTMENT

9105 NW 25TH ST DORAL, FL 33172
(305) 471-2070

I ,

Date of warrant: July 14, 1980

Type of crime: drug related

SEE NEXT PAGE

Redacted

Paqe 2

Oriqinatinq case number : FBOOl0900 National Crime Information Center number: W4130l6901
• Social Security cannot provide further information about the warrant . To satisfy the warrant or qet more information about it, please contact directly the MIAMI DADE POLICE DEPARTMENT.

If You Think Your SSI Should Be Paid
Even if you have an outstandinq arrest warrant, you have certain additional riqhts under the law. Your 551 can be paid if you can show us you have a qood reason for not satisfying the outstanding warrant. Please see the enclosure "Information About SSI and Outstandinq Arrest Warrants· at the end of this notice for what Social Security considera a good reason for not satisfyinq a warrant. This enclosure also tells you what to do if you think you have a qood reason.

Information About Medicaid

For information about any chanqe in your Medicaid eliqibility
caused by this action" you should qet in touch with the local Social Services District Office.

ThinqllTo R_ellll>er

• We may be in touch with you later about any payments we previo\1s1y ' made.

• This decision refers only to your claim for SSI payments.

• This determination replaces all previoull determinations for the above periods.

If You Disagree With The Deciaion

If you disagree with the deciSion, you have the right to

appeal. We will review your case and consider any new facts

you have.

'

• You have 60 days to ask for an appeal .

• The 60 days start t he day after you qet this letter. We assume you qot this 'letter ,5 days after' the date on it unless you show us that you did not 'qet it within the
5 day period.

• You must have a good reason for waitinq more than 60 days to ask for an appeal.

• To appeal, you must fill out a form called "Request For Reconsideration." The form number is SSA-56l. To qet

SEE NEXT PAGE

Redacted

Page 3

this form, contact one of our offices. We can help you fill out the form by telephone.
Appeal In 10 Days To Keep Getting The Same Check
If you appeal within 10 days, you will continue to get the same check amount until we decide your case.
• The 10 days start the day after you get this letter.
• If you loae your appeal, you might have to .·pay .back some or all of this money.
However, even if you appeal in 10 days, we may atop the check in January 2006 as shown above if both of the following are true:
• OUr new · decision is the same aa the one you appealed; and
• We send or give you a letter with our new decision in time to stop the cheek.
L
How To Appeal
There are three ways to appeal. You can pick the one you want. If you meet with us in person, it may help us decide your case.
Case Review: You have the riqht to review the facts in your file. You can give us more facts to add to your file. Then we will deCide your case again. You will not meet with the person who decides your case.
Informal Conference: You will meet with the person who decides your case. You can tell that person why you think you are right. You can give us more facts to help prove you are right. You can bring other people to help explain your case.
Formal Conference: This is a meeting like an informal conference. The difference is we . can make people come to prove you are right. We can make them bring important papers about your case, even if they do not want to help you. You can question these people at your meeting.
If You Want Kelp With Your Appeal
You can have a friend, lawyer or someone else help you: There are qroups that can help you find a lawyer or give you free legal services if you qualify. There · are also lawyers who do not charge unless you win your appeal. Your local Social Security office has a list of groups that can help you with your appeal .

SEE NEXT PAGE

Redacted

i
i
f· Page 4

If you get someone to help you, you should let us know. If you hire someone, we must approve the fee before ' he or she can
collect it . And if you hire a lawyer, we will withhold up to 25 percent of any past due benefits to pay toward the fee.

If You Have Any Quastions

For general information about 551, visit our website at

www.socialsecurity.qov on the Internet . You , wi1l find the law

and regulations about SSI eligibility and S5I payment amounts

at www.socialsecurity.gov/SSlru1es/.

'

For qeneral questions about SSI or specific questions about

your case, you may call us toll-free at 1-800-772-1213, or call

your local Social Security office at f-650-363-2919. Our lines

are busiest early in the week and early in the month, so if your business can wait, it's bast to ca11 'at other times. We

I
I

can answer most questions over the phone. You can also write
or visit any Social security office. ' The office that serves your area is located at:

i
l

601 ALLERTON ST 2ND FL

L

REDWOOD CITY CA 94063

I

I

If you do call or visit an office, pleaae have this letter with

t

you : It will help us answer your questions. Also, if you plan

to visit an office, you may call ahead to make an appOintment.

This will help us serve you more quickly when you arrive at the

office.

Peter D. Spencer
Regional Commissi'oner San Francisco Region

Enclosure: Information About SSI and Outstanding Arrest Warrants

L
, i

i i

SEE NEXT PAGE

,
EXHIBITB

SOOAL. 5ECURtTY ADMINISTRATION
REQUEb I FOR RECONSIDERATION

TOE 7'0

NAME OF CLAIMANT

Ii A· ' All r' r I c..-.-.:...\.." , . .'. i. iI:t;.'J"!.;•f'-~/{.'."..,. -'-:..•.-
SOCIAL SECURITY CLAIM NUMBER

J

Redacted

SPOUSE'S NAME (Complete ONLYin 5S1 cBsesl

NAME OF WAGE EARNER OR.SELF·EMPLOYED PERSON Iff differ""t from claim.nt.1
SUPPLEMENTAL SECURITY INCOME ISSII OR SPECIAL VETERANS BENEFITS ISVBI CLAIM NUMBER
SPOUSE'S SOCIAL SECURITY NUMBER
(Complete ONL Y in SSI cases)

Form Appravad
nUR
IDo not wlite in this space}
. "U-
DEC 11 Zoo7

..
CLAIM FOR (Specify type, e.g., retltement, dl8a,bility, hospItal Insurance, S51, SVB, etc.1
I do not agree with the determination made- on the above claim and request reconsideration. My reasons are:

I
(.'') -,I-

SUPPLEMENTAL SECURITY INCOME OR SPECIAL VETERANS BENEATS RECONSIDERATION ONLY

(Se. the three ways to eppul in the How To ""Pial Your SuppiemeMII Security InGome ISS1I Or Special Vetlr.,. a.".fl1ISVBJ Cecilton) inluuctlons.l

"I wont to "II-' your ....ian about my _ for SlQII'IomonaJ Security Incomo (551) or s.-;.J Vet...... IIonIfils

ISVB}. I'v.'- _ tho three wa,. to "II-'.I'va _

tho bela bolo••"

0 [J Case Review

Informal Conference [!f. Formal Conference

EITHER THE CLAIMANT OR REPRESENTATIVE SHOULD SIGN· ENTER ADDRESSES FOR BOTH

I declare ~nd.r forms and it is

.tpreunealatOvOofcope"r"j"utrytothtahteIbheasvteoefxmamv iknnecdwallel dthgee

interm.tion

on

this

term,

and

on

any

accompanying

statements

or

/ .;.;-..._- ._. CLAIMANT SIGNATURE

/

,;'.
-/r.'"~j''''

rt~>'F:...;;.:.i1·:;;}

" MAl3!~D~RIES/."\S"C.,'";t.Iili.CJ.:"'{JOC\\ 1:~': J.--fi ....;-t;J;::~~

SIGNATURE OR NAME OF CLAIMANT'S RE.PRESENTATI1I£

0 0 NON-ATTORNEY

ATTORNEY

MAILING ADDRESS

CIKli. i)~ .....~j IJ"O ,:.

ISTeA·

':1 b ZIPCOOE !""i~)

•

!

CITY

ISTATE

ZIP CODE

lEl.EPHONf
C-:;'a.J

~IV!BE~
,.'!

(-lnc,h..f.!.!V'~'fo~'.''-' J

l DA~
! ~

!

,.0;) -:fo TELEPHONE NUMBER /hIC1ud••1N _ I ..

TO BE COMPLETED BY SOCIAL SECURITY ADMINISTRATION See list of initial determinations

1. HAS INmAL OETERMINATION BEEN MADE?

I!J YES

2. CLAIMANT INSISTS
ON FlUNG

DATE

0 D'YES

NO

3. IS THIS REQUEST FILED TIMELY? (If "NO', ,ttsch claimant's exjJlanlltian for delay and attach on/y perrin""t letter, matedal, or informlltion in social $ecutity offiCII.}

DYES ONO

RETIREMENT AND SURVIVORS RECONSIDERATlDNS ONLY (CHECK ONE) REFER TO fGN 03102.12S} SOCIAL SECURITY OFFICE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~------------------------~----~,ADDRESS

o NO FURTHER DEVELOPMENT REQUIRED (GN 03102.300)
o REQUIRED DEVELOPMENT ATTACHED o REQUIRED DEVELOPMENT PENDING, WILL FORWARD OR ADVISE STATUS

WITHIN 30 DAYS

i oi ROUTING
INSTRUCTIONS

DISABILITY DETERMINATION SERVICES IROUTE WITH

i oi (CHECK ONE) ---;1> .

DlSABIUTY FOWERJ 000, BALTIMORE

'
o PROGRAM SERVICE CENTER
o 010; BALTIMORE'
o oeo, BALTIMORE

Social Security Administration 601 Allerton Street 2"" Fin". Redwood City, CA 9406;
DISTRICT OFFICE
o RECON.SIDERATION CENTRAL PROCESSING SITE (SVB)

NOTE: Take or mail the .Iped origiBBl to your local Social Security office, the Veterans Affairs Regional Office in Manila or any

U.S. Foreign Service post and keep a copy for your records.

.

Form SSA·561·U2 17·2003} EF 13-2006} Destrov Prior Editions

Claimant

EXHIBITC

Social·Security Administration

.Supplemental Security Income

Notice of Reconsideration

SOCIAL SECURITY 60i ALLERTON ST 2ND FL REDWOOD CITY, CA 94063 Claim Number: IRedacted
December 11, 2007

026 ROSA MARTINEZ · 334 REDWOOD AVE

APT 5 REDWOOD CITY CA 94061-3044

Dear ROSA MARTINEZ

Reconsideration Filed: December 11, 2007

You have requested that Social Security reinstate your Supplemental Security Income payments, but you have not provided the documentlltion needed. Social Security records indicate that Miami Dade Police Department in Doral Florida .
a has warrant for your arrest and the crime that the warrant was issued for is a
felony. In order for Social Security to reinstate your benefits you must provide an
original document which lists The Warrant Number, The issuing agency/county, and the date the warrant·was rescinded or satisfied. Ifyou believe the warrant was issued in error, Social Security must have an original document that states the warrant was issued in error and does not pertain to you at all. It must state the date the warrant was rescinded. This is the only way this case can be resolved.

If You Disagree With The DeCision
H you disagree with this decision, you have the right to request a hearing. Aperson
who has not seen your case before will look at it. That person is an Administrative Law Judge (ALJ). The ALJ will review your case again and look at any new facts you have before deciding your case.

• You have 60 days to ask for a hearing.

• The 60 days start the day after you receive t~ letter. We assume you got this letter 5 days after the date on it unless you show us that you did not get it within the 5-day period.

• You must have a good reason ifyou wait more than 60 days to ask for a hearing.

See Next Page . ,

Redacted

Page 3 or3

local Social Security office at 650·363·2919 and ask for Mrs. C. Soge. We can answer most questions over the phone. Ifyou are deaf or hard ofhearing. you may call our TI'YtrDD number 800·325·0778. If you do call or visit an office, please have this letter with you. It will help us answer your questions.

If you plan to visit an office you may call ahead to make an appointment. This will help us serve you more quickly.

A. St4it!et
A. Stanfel District Manager
!
i ~

.., . .
.'" -, ~ -

 
 Case4:08-cv-04735-CW Document141 Filed07/21/09 Page1 of 17

DAV ID H. FRY (SBN 1892 76)
David .Fry@mto.com 2 MARK R. CONRAD (SBN 255667)
Mark.Conrad@mto.com 3 J EREMY S. KROG ER (SB ' 258956)
lercm y.Kroger@mto .com 4 MUNGER, TOLL ES & OLSON LLP
560 Mi ssion Street, 27th Floor 5 San Francisco, CA 94 105-2907
T : (4 15) 5 12-4000 / F: (415) 512-4077
6
GERA LD A. MciNTYRE (SBN 18 1746) 7 gmcintyre@nsclc.org
NATIONAL SEN IOR C ITIZENS LAW CENTER
8 3435 Wilshire Blvd., Suite 2860
Los Ange les, CA 900 10- 1938 9 T: (2 13) 674-2900 / F: (213) 639-0934

10 ANNA RICH (SBN 230195) aric h@ nsclc.org
II KEVIN PRINDIVILLE (SBN 235835) kprindivi lle@nsclc.org
12 NAT IONA L SENIOR C ITIZENS LAW C ENTER 1330 Broadway, Suite 525
13 Oak land , CA 94612 T : (5 10) 663-1055 / F: (510) 663- 1051
14 Attorneys fo r PLAINT IFFS
15 ADD ITIONAL COUNSEL LI STED ON NEXT PAGE

16

17

UNIT ED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CA LIFORNIA

19

OAKLAND DIV IS ION

20 ROSA MARTINEZ, JIMMY HOWARD,
ROBERTA DOBBS, BRENT 21 RODERICK, SHARON ROZIER, and
JOSEPH SUTRYNOWICZ, on behalfof
22 themscives and all others similarly situated,

23

Plaintiffs,

CASE NO. 08-CV-4735 CW

STI PULATION OF SETT LEMENT

Date: Tim e: Dept:

August I I, 2009 2:00 p.m. Courtroom 2, 4th Floor

24

vs.

Th e 1-1 00. Claudia \ Vilken

25 M ICHAEL J. ASTRUE, Commissioner of Social Secu rity, in his o ffic ial capaci ty,
26 Defendant.
27 1------------------------
28

8396248.2

STIPULATION OF SEr n .EMENT; CASIl NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page2 of 17

E~ ILI A SICILIA esici1ia@urbanjusticc.org 2 JENN IFER PARISH j parish @urhanju sti cc.org 3 URBAN JUSTI CE CENTER 123 Wi ll iam Street, 16th FI. 4 New York, NY 10038 T: (646) 602-5668 / F: (2 12) 533-4598 5 CHRISTOPHER A. DOUGLAS (SBN 239556) 6 cdouglas@legalaidsmc.o rg ~. STACEY HAWVER (SBN 1460 12) 7 mshawver@ legalaidsmc.org LEGAL AID SOC IETY OF SAN ~ATEO COUNTY 8 52 1 East 5th Avenue San ~ateo, CA 94402 9 T: (650) 558-0915 / F: (650) 558-0673
10 ~AR1LYN HOLLE (SBN 61530) marilyn .holl e@disabilityrightsca.org
I I DISAB ILITY RIGHTS CALIFORN IA 3580 Wilshire Blvd. Suite 902
12 Los Angeles, CA 90010-2522 T: (2 I3) 427-8747 / F: (2 I3) 427-8767
13 Attorneys for PLAINTIFFS
14
15 JOSEPH P. RUSSON IELLO (SBN 44332) United States Attorney
16 JOA NN~ . SWANSON (SBN 88 143) Chi er, Civil Division
17 VICTOR.IA R.. CAR.R.ADERO (SBN 2 I7885) Assistant United States Attorney
18 ANDREW Y.S. CHENG (SBN 164613) Assistant United States Attorney
19 ~ICHAEL T. PYLE (SBN 17295 4) Assistant United S lales Attorney
20 450 Go ld en Gate Avenue, 9th Floor San Francisco, Calirornia 94102-3 495
21 Telephone: (4 15) 436-6813 Facsimile: (4 I5) 436-6748
22 Email: Andrew.C heng@ usdoj.gov Email: Victoria.Carradero@usdoj.gov
23 Attomeys for FEDERAL DEFENDANT
24
25
26
27
28
83%248 .2

STlI'ULA T1QN OF SET rLl3MENT; CASE NO. 08-CV4735 CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page3 of 17

RECITALS 2
W HEREAS, on October 15,2008, Plaintiffs Rosa Martinez and Jimm y Howard 3
filed this putative c lass action lawsuit against Defendant Michael J. Astrue , in hi s omcial capacity
4 as Commissioner of Social Security;
5 WHEREAS an Amended Complaint was fil ed on December 12,2008 adding
6 Plaintiffs Roberta Dobbs, Brent Roderick , Sharon Rozier, and Joseph Sutrynowicz;
7 WHEREAS Plainti ffs all ege that Defendant's polic y of denying or suspending
8 benefits to persons on the basis of an outstanding felony arrest warran t and not permitting persons
9 with outstanding fclony arrest warrants to serve as representati ve payees vio lates the Social
10 Security Administrati on's governing statutes and regulations;
II WHEREAS Defendant deni es Plaintiffs' all egations, deni es all liability wi th
12 respect to the Action, and denies that it committed any violation of law;
13
WHEREAS the Parti es des ire to reso lve amicably all the claims raised in the 14
above-captioned action without admi ssion of li ab ility in order to avoid thc substantial expense, 15
inconven ience, and distraction of protracted litigation; 16
WHEREAS the Panics have conducted discussions and ann 's length negoti ations 17
with Defendant 's Counsel with respect to a compromise and settlement of the Action w ith a view
18 to settling the iss ues in dispute and furnishing relief consistent with the interests of the Named
19 Plaintiffs and the Class;
20
WH EREAS the Panics (1) have concluded that the temlS and conditions of thi s 21
Stipulation of Settlement are fa ir, reasonable and in the best interests of the Named Plaintiffs and
22
the C lass; (2) have agreed that the Released Parties should be released from the Released Claims
23
pursuant to the te nllS and provisions of thi s St ipul at ion ofSettlemelllj (3) and have agreed to the 24
dismissal of the Action wi th prejUdice, afier cons id ering the substan tial benefits that the Named
25
Plaintiffs and the C lass w ill receive from settlement of the Act ion , the ri sks of litigation, and the
26
desirability ofpemlitting the Settlement to be consummated as provided by the tenns of th is
27
Stipulation of Settlement;
28

8396248.2

-I -

STIPULATION OF SErTLEMENT; CASE No. OS-CV4735CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page4 of 17

NOW THEREFORE, IT IS H EREBY STIPULATED AND AGREED by and
rrs 2 amo ng the Named Plainti and Defendant, throu gh their respective auomeys, subjec t to

3 approval by the Co urt pursuant to Rul e 23(e) or the Federal Rules ofCiv ii Procedure, in

4 consid erati on or the benefits flowing to the Part ies fTom the Sett lemen t Agreement, that all

5 Released Claims sha ll be compromised, settled, forever released, barred and dism issed, with

6 prejudice, upon and subject to the fo llowing IcmlS and condit ions.

7 DEFINITIONS

8

"Action" Ill eans the liti gati on in the United States Di strict Court, Northem District

9 of Cali fornia, Case No. 08-CV-4735 CWo

10

The "Benefit Programs" means, collective ly, th e SS l, SY8, and OASD I benefi t

II programs under the Social Security Act.

12

"Class Counsel" or "Plaintiffs' Co unse l" means: the National Senior C iti zens Law

13 Center; Munger, To ll es & Olson, LLP; the Urban Justice Cen ter; Disability Righ ts California; and

14 the Legal Aid Soc iety of San Mateo County.

15

The "Class" or "Class Members" means: fo r purposes of thi s settlement only, a

16 Plaintiff class pursuant to Rule 23(b)(2) of the Federa l Ru les of Civil Procedure. comprising: All

17 persons whose SS I, SV8, or OASD I bene fits have been suspended or denied, or who have been

18 notifi ed of a proposed suspensio n or denial o f such benefits, for "neein g to avo id proseclltion or

19 custody or confinement after convictio n" for a felony or who are not pennitted to servc as

20 Representative Payees fo r SS I, SVB o r OASD I benefits for " fl eeing to avoid prosecution or

21 custody or confinemcn t after conv icti on" for a fe lony. The class shall not include, and this

22 settlement shall not app ly to, any individual who has received a final federal court disposi tion

23 regarding payment or nonpayment of benefits due to fugitive felon status .

24

"Court" means the United S tates Di strict Court fo r the Nort hern District of

25 Californi a.

26

"Defendant" or " the Comm issioner" means Michael J. Astrue, the Comm issioner

27 of Social Security, in his official capac ity.

28

8396248.2

-2 -

STIPULAnON OF SErI"LEM ENT; CASE NO. OS.cV-4735CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page5 of 17

"Effecti ve Date" means 6 1 days fro m the Court's en try of an order granting final

2 approva l of the settl ement term s or after wh ich the time to file any appeal has concluded and any

3 and all objections have been reso lved and appeals have been exhausted, wh ichever is later.

4

" Final Approval Dale" means the dale upon which the Cou rt enters an o rder

5 granting final approval of this Settlement Agreement , after having detemlined that it is adcquate,

6 fair, reasonable, equ itable, andjust to the C lass as a whol e after a hearing on the fairness of the

7 settlement.

8

"Lead Class Counsel" or "Lead Plaintiffs' Cou nse l" means Gerald McIntyre of th e

9 Nat ional Senio r C iti zens Law Center.

10

"Named Plaintiffs" refers to Rosa Martinez, Jimmy Howard, Roberta Dobbs, Brent

II Roderick, Sharon Rozier, and Joseph Sutrynowicz.

12

'<Nat io nal C rime Information Center (NC IC) codes" refer to the o ffense codes

13 categori zing felo ny arrest warrants o n the FBI's natio nal database.

14

"OASDI" means Old Age, Survivors, and Disability Insurance, under Title" of

15 the Soc ia l Secu rity Act.

16

" Overpayment" means a detennination made by the Comm issioner that a program

17 bencficiary has received more than the co rrect benefit payment due because of a benefit

18 s uspension based on an outstand ing felony arrest warrant , unl ess the s uspension was based on a

19 warrant w ith a NC IC felony offense code of 4901 (Escape), 4902 (F li ght to avoid prosec ution ,

20 confineme nt), or 4999 (Fli ght~Escape).

21

" Parti es" refers to the Named Plaimiffs, the C lass, and Defendant.

22

"Plai nti ffs" refers to the Named Plai nti ffs , acting on their own behalf and on

23 bchalfofa ll Class Members.

24

"Post~ 2006 Class Members" means all Class Members for whom SSA made an

25 initi al suspension, initial denial, or admi nistrative appeal dcnial o n or after January 1,2007 based

26 on an outstanding felony arrest warrant unless the determination was based on an outstanding

27 felony arrest warran t with a NCIC code of 4901 , 4902, or 4999; or with a pending administrative

28 c laim challen ging any such suspension or denia l as of August 11 ,2008.

8396248 .2

-3 -

STIPULATION OF SETTLEM ENT; CASE No. 08 -C V47 3SCW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page6 of 17

"Pre-2007 Class Members" means all Class Members for whom SSA made an

2 initial suspension or initial denial based on an outstanding felony arrest warrant un less the

3 detemlination was based on an outstanding felony arrest warrant with a NCIC code of 4901,

4 4902, or 4999, on or after January 1,2000, but before January 1,2007, and who did not obtain an

5 administrative appeal denial on or after January 1,2007; or who did not have a pend ing

6 administrative claim on August 11 , 2008 appeal ing such a suspens ion or denial.

7

"Preliminary Approval Date" means the date upon which the Court enters the

8 Order attached as Exhibit A preliminarily approving this Settlement Agreement, and setting a

9 fairness hearing.

10

"Released Claims" means any and all claims asserted in the First Amended

I I Complaint by and/or on behalfofthe Class Members, and claims related to the subject matter of

12 this lit igation that could have been asserted in the First Amended Complaint.

13

"Released Parties" means Defendant, his predecessors, successors, departments,

14 agencies, past or present agents, employees and contractors.

15

"Releasing Parties" means Plaint ifTs, the Class and the Class Members, on behalf

16 of themselves, their heirs, executors, administrators, representatives, attomeys , successors,

17 ass igns, agents, affi liates, and partners, and any Persons they represent. Nothing in this definition

18 shall be interpreted to contravene 42 U.s.c. § 407 prohibiting transfer or assigtunent of claims or

19 benefits.

20

"Representative Payee" means an individual who has been selected or appo inted to

21 receive payments on behalf of any beneficiary of the Benefit Programs pursuant to 42 U.S.c. §§

22 405U), IO07(d), or 1383(a).

23

"SSA" means the Social Security Administration.

24

"Settlement Agreement," "SeUlement," or "Agreement" means this StipUlation of

25 Settlement, including the attached exhibits.

26

"SST" means Supplemental Security income under Tit le xvr orthe Social Security

27 Act.

28

"SVB" means Special Veterans Benefits under Title VIfI orthe Social Security Act.

8396248.2

- 4-

STIPUL ATJON OF SEn-LEMEN T: CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page7 of 17

AGREEME NT

2

ARTICLE I

3

APRIL 1, 2009 POLI CY C HANG E

4 1.1 Effective April 1,2009, SSA suspends/denies benefi ts/payments to Class
5 Members lIsing the curren t po licy and procedure only for tllree catego ries ofNCIC Un ifo rm
6 Offense Classification Codes as fo llows: Escape (490 1); Fli ght to avoid (prosecution,
7 confinement, etc.) (4902); and Fli ght-Escape (4999) . SSA ' s po licy is set fort h in Pol icy
8 Instruct ion EM-09025. See Ex hibit B.
9 1.2 Effec tive April 1, 2009, SSA appl ies the poli cy in paragraph 1. 1 when consideri ng
10 a person's req uest to serve as a Rep resentative Payee. However, SSA may usc all walTant
I I in fo nnation in detenni ning an ind ividual's sui tabi lity to serve as a Representative Payee. See
12 Exhi bit C.
13
ARTI C LE II
14
RELIEF TO POST-2006 C LASS MEMBERS 15

16

2. 1 SSA shall provide rel ief to all Post-2006 Class Members consistent with the

17 fo ll owing provisions.

18

2.2 SSA shall identify and remove overpayments resulti ng from initi al suspensions,

19 in itial den ials, or administrative appea l deni als SSA made on or after January 1, 2007 based on an

20 o utstanding felo ny arrest warrant un less based on a warrant with NC IC codes of 490 1, 4902, or

2 1 4999 fo r any peri od of suspension prior to January I, 2007 back to the fi rst month of suspension.

22 SSA will repay any sums already coll ected pursuan t to the overpayment detennin at ioll .

23

2.3 SSA will reinstate benefit paymen ts fo r any pe riods o f suspens ion subject to a

24 redetenni nati on of non-med ical el ig ibi lity criteria . Nomlal redeterminatio n procedures will app ly.

25 C lose o ut procedures con sistent with the guidance in ex istin g POMS w ill app ly. SSA may

26 cond uct continuing disab ility reviews (CDRs) pursuant to generall y applicab le SSA po licies after

27 benefits/payments have been rein stated.

28

8396248.2

-5-

STIP ULAn ON OF SETILEMENT; CASE No . OS-CV-4 735 CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page8 of 17

2.4 SSA Illay need to reopen a previously denied claim to assess med ica l and nOIl-

2 medi ca l eligibility criteri a, except thaI where a medica l detcnnination of disability has already

3 been made, the med ical deteml ination shall not be reopened except pursuant to generally

4 app li cable SSA policies. Nomla l delcmlination cfnon-medical e li gibil ity criteria wi ll app ly.

5

2.5 Except as stated herein , all payments to Post-2006, C lass Members arc subj ect to

6 regu lar payment, nonpayment, and reduced payment prov isions of lhe Socia l Security Act.

7

2.6 Following the Effective Date, SSA sha ll con tact the Post-2006 Class Members

8 through individua l not ices mail ed to the last known address on SSA records. SSA shall bear the

9 cost of this notice. The notices genera ll y sha ll advise that SSA's policy regarding ou tstanding

10 fe lony arrest warrants has changed and that the individua ls may be entit led to or eligible fo r

It benefits or payments for app licable periods o f suspension or non-payment.

12

ARTICLE 111

13

RELIEF TO PRE-2007 C LASS MEMBERS

14
3. 1 SSA sha ll provide relief to a ll Pre-2007 C lass Members consistent with the 15
following provisions. 16
3.2 SSA sha ll cease to collect overpayments of any previous benefit payments made to 17
Pre-2007 Class Members and shall remove any remaining balance. Noth ing in this paragraph 18
shall be read to requi re SSA to reimburse Pre-2007 C lass Members for any benefit payments that 19
the Prc-2007 C lass Members have al ready repaid to the SSA, unless the individual meets th e 20
condi tions requ ired by SSA regulations for reopeni ng a claim. 21
3.3 Except as stated herei n, all payment s to Pre-2007 C lass Members are subject to 22
regular payment, nonpayment, and reduced paymcnt provisions o f the Social Security Act.
23
3.4 Follow ing the Effective Date, SSA shall send individual notices, mail ed to the
24
most recent address in SSA ' s records, to each Prc-2007 C lass Mcmbcr who is not receiving 25
benelits as of Apri l 1, 2009 on the basis that thcy have an outstandin g fc lony arrest warrant other 26
than three categori es of NC IC codcs of 490 1, 4902 , and/or 4999. SSA shall bear the cost of this 27
o nc-tim e notice and will not conduct any follow-up address search or mai li ng. The notice will
28

8396248.2

-6-

STII' ULATIO NOF SETTLEME NT;
CASE NO. 08-CV-473S cw

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page9 of 17

infonn the individual that SSA suspends or denies benefits/payments using the current policy and

2 procedure only for three categories ofNCIC codes 4901, 4902 and/or 4999. The notice will state

3 that , if the individual thinks he/she may be eligible for benefits/payments, he/she may contact

4 SSA through the 1-800 telephone number to schedule an appointment for prospective

5 reinstatement of Titl e II benefits or to file a new application for Title 11 (if required), Title VIII, or

6 Title XVI benefits. Unless an individual covered by Article II also has a separate suspension or

7 denial in the period January 1, 2000 through December 31,2006 for an outstanding felon y arrest

8 warrant except for warrants with codes of 4901 , 4902, and/or 4999, the individual would not

9 receive the notice covered in this paragraph.

10

3.5 If a Pre-2007 Class Member contacts SSA to make an appointment within six

11 months of the date on th e notice mailed pursuant to the preceding paragraph , Ihat individual shall

12 receive a "protective filing date" of April I, 2009, for any subsequent application for benefits or

13 req uest for reinstatement- i.e., SSA will tTeat that individual 's application or request as ifit had

14 been filed on April I, 2009.

IS

ARTICLE IV

16

PUBLICATION

17 4.1 Immediately following the Final Approval Date, SSA shall publici ze the terms of
18 this Agreement consistent with the followin g provisions.
19 4.2 SSA shall post a news item on its official, public website, www.socialsecurity.gov,
20 that will summarize the key provisions of this Agreement, including the provisions set forth in
21 ARTICLE 1, ARTICLE II , and ARTICLE Ill.
22 4.3 SSA shall revise the "fugitive felon" webpage, located at
23 www.ssa.gov/oiglinvestigations/ fugitivcfelonlfugitivefelon.htm. to reflect the changes in policy
24 set forth in this Agreement.
25
4.4 SSA shall publish a Social Security Ruling in the Federal Register. The Ruling
26
shall explain how SSA will implement the fl eeing felon provisions under the tenns oflhis
27 Agreement. The Ruling shall also be made available on SSA's website, www.socialsecurily.gov.
28

8396248.2

-7-

STIPULATION OF SETILEMENT; CASE NO. 08-CV4735 CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page10 of 17

ARTI CLE V

2

TlMEFRAMES FOR IMPLEMENTATION

3 5.1 On June 12,2009, SSA developed implementation plans to set forth all anticipated
4 timcfTames for implementing the tcnn s o f thi s Agreement. The timeframes set fort h by SSA
5 re nCCI due di ligence in implementation. Shou ld the co urt substant ively aller the temlSof the this
6 Settlemen t Agreement such that SSA's implementation plans must be amended, and SSA agrees
7 to the amendment, SSA will have an additional 60 busi ness days from the Final Approva l Date to
8 submit linal impl ementation plan s.
9 5.2 IfSSA needs to make a significant adj ust ment to the June 12,2009,
10 impl ementation plan either due to changes required by ' 15. 1 of this agreement or due 10 currently
II unknown facts or unanticipated circumstances (includ ing changes in the fai m ess hearing dale or
12 the e rrect ive dale of the sett lement), SS A wi ll notify Lead Class Co un sel and explain the facts o r
13 circu mstances. Upon receipt of any such notice and ex planation, Lead Class Counsel may no tify
14 SSA o f any concem s abo ut the adjustment and the parties will seck to resolve these conccms
15 amicab ly. If, in Lead C lass Counsel's view, SSA does 110t adequate ly respond to the concerns,
16 Lead Class Counsel wi ll fo ll ow the dispute resolution proced ures described in Article X.
17 ARTICLE VI
18 INQUIRIES, COMMENTING, AND REPORTING
19

20

6.1 SSA shall designate an individua l who wi ll serve as a point of contact for Lead

2 1 Class Co unse l. Said individual will act in good faith to address any inqu iri es from Lead Class

22 Counsel related to the imp lementation of thi s Agreement.

23

6.2 SSA shall provide to Lead Class Counsel an advance copy o f any draft POMS

24 instructions, Emergency Messages, and the onc-time draft notices (stipu lated in paragraphs 2.6

25 and 3.4) to Class Members issued in implementation o f this Settlement Agreement. Lead Class

26 Counsel wil l provide comments, if any, to SSA, wi th in two business days ofrcceiving the drafts.

27 SSA is not obligated to respond to Lead Class Co unsel's comments or to incorporate those

28 comments into any POMS instructions, Emergency Messages, or noti ces that it issues.

8396248 .2

-8 -

STIPU LA TJON OF SETrLEMENT: CASE No. 08-C V-47)5 C W

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page11 of 17

6 .3 The SSA shall provide Lead Class Counse l w ith notifi cation of:

2

(a) the dates that the SSA begins and substantially completes each phase of the

3 implementation plan developed by the SSA pursuant to ARTICLE V of this Settlement

4 Agreement ; and

5

(b) the aggregate number of notices sent to individuals pursuant to ARTICLE

6 II and ARTICLE III of this Agreement.

7

ARTICLE VII

8

ENTIRE AGREEMENT

9
7.1 The terms of this Settlement Agreemen t and any exh ibits thereto arc the exclusive 10
and fult agreement of the Parties with respect to all claims for relief and attorneys ' fees and costs
II as set forth in th is Sett lement Ah'Tcemcllt and in the First Amended Class Action Complaint. No
12 representations or inducements or promises to compromise this action or enter into thi s
13 Sett lement Agreement have been made, other than those recited or referenced in this Settlement
14 Agreement.
15 7.2 This Settlement Agreemen t is not intended to change, modify, or revise SSA ' s or
16 the Offiee of Inspector General ' s implementation of sections 202(x)(3)(C) and 1611 (e)(5)(A) of
17 the Soc ial Security Act with regard to the disclosure of information to federa l, state or local law
18 enforcement.
19
ARTICLE VIII
20
APPROVAL 21

22

8.1 This Settlement Agreement is expressly conditioned upon its approval by the

23 Court.

24

8.2

The terms of this Sett lement Agreement are adequate, fa ir, reasonable, equitable

25 andjusl.
26

27

28

8 3 % 2 4 8 .2

- 9-

STII'ULA T ION OF SETILEM EN T; C,l.SE No. 08--CV-4735CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page12 of 17

ARTI C L E IX

2

FI NAL J UDGM ENT

3 9. 1 If, after the fa irness hearing, the CO LI rt app roves this Settlement Agreement as
4 adequate, fair, reasonabl e, equitabl e and just, the Court shall di rect the entry of an order
5 dism iss ing this acti on wi th prejudice, pursuant to the tcnns of thi s Selli cment Agreement and Fed.
6 R. eiv. P. 4 1(a)(2), except that the Court shall retain juri sdi ctio n for th e li mited purposes
7 described in ARTI CLE X of thi s Settl ement Agreement. The Co urt's order shall incorporate the
8 lemlS o f the SeHlement Agreement
9 ARTI C LE X
10 CO NTINUING J URISDI CTION
II

12

10. 1 The Court will retain ju risdicti on over this matter for the purposes of (a) enforci ng

13 the provis ions of the Settl ement Agreement in the event that onc or the Parties claim s (after

14 fo llowi ng thi s Agreement's dispute rcsoluti on proced ures) that th ere has been a breach of the

15 Settl ement Agreement ; (b) modi fy ing the Sett lement Agreement ifjointl y requested by the Parti es

16 pursuan t to ART ICLE XI and (c) entering any other order authorized by the Settlement

17 Agreement. Bo th C lass Counsel and Defendant 's counsel w ill make good fai th efforts to

18 ami cab ly resolve issues w ith regard to the Agreement. If the parti es are not able to resolve 19 matters, they w ill engage in good fa ith mediati on d iscussions before a magistrate j udge 20 designated by the cou rt (the parties ' preference is Magistrate J udge Edward C hen), prior to 2 1 seeki ng enforcement pu rsuant to thi s Article.

22

ARTI C LE XI

23

MODIFI CATION

24
11 .1 At any lime whil e the Court retains j urisd ictio n over Ihi s matter as described in
25
ARTICLE X, Pl ainti ffs and Defendant may jointly agree to mod ify this Settl emenl Agreement.
26
Any req uest fo r mod ificati on m ust be in writi ng, signed by bo th C lass Co unsel and Defendant' s 27
counscJ, and is s ubject 10 approva l by the Court.
28

8396248 .2

- 10-

$TlPU LA T ION O F SElTU':: MENT; CASE No. OS-CV4735 CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page13 of 17

ARTICLE XII

2

CHANGE IN CONTROLLING LAW

3 12.1 A chan ge in controlling law, c.g., an amendment to the Soc ial Security Act that is
4 inconsistent with the temlS Oflhi s Agreement, shall supersede the tenns of thi s Agreement.
5 ARTICLE XIII
6 RELEASE
7

8

13.1 Thi s Settlement Agreement fully and finally resolves all claims asserted in the

9 First Amended Comp laint filed by Plaintiffs o n December 12, 2008, any and all claim s related to

10 the subject matter of this litigation that co uld have been asserted in the First Amended Compla int.

11 Effect ive upon the Final Approval Date and subject to the terms of ART ICLE VIII and ARTICLE

12 [X above, the Releasing Parties shall be deemed to have, and by operat ion of the final judgment 13 shall have, fully, finally and forever released , relinquished, discharged, and dismissed with 14 prejudice the Released Parties o f and from any and all of the Released Claim s, and the Releasing 15 Parties shall forever be barred and enjoined from bringing or prosecuting any Released Claim 16 against any of the Released Parties. Nothing conta ined herein shall release the Comm ission er or 17 SSA of any obl igat io ns arisi ng under this Settlement Agreement.

18

ARTICLE XIV

19

NO ADMISSION

20
14.1 Thi s Settlement Agreement does not constitute an adm ission by the Defendant of 21
any pattern or practice that violates or fai ls to comply with app li cab le law governing the matters 22
all eged in this acti on. 23
14.2 This Settlement Agreement, whether or not executed, and any proceedings taken 24
pursuant to it (a) shall not be construed to waive, reduce or otherwise diminish the authority of
25
the Defendant to enforce the laws o f the Un ited States against Class Members notwithstanding
26
the ternlS of this St ipul ation , consistent with the Constitut ion and laws of the United States; (b) 27
shall not be offered or received against the Defendant as evidence of, or construed as or deemed
28

8396 248.2

- 11 -

STIPULA TION OF SETTLEMENT: CASE NO. 08-CV -47J5C W

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page14 of 17

to be ev idence of, any presumption, concession, or adm iss ion by the Defendant of the truth orany 2 fact all eged by the Plaintiffs or the valid ity ofaflY claim that had been or cou ld have been asserted 3 in the Action or in any li tigation, or the deficiency of any defense that has been or could have

4 been asserted in the Action, or orany liability, negligence, fau h, or wrongdo ing of the Dcfcildalll;

5 or any admission by the Defendant ofaflY violations of, or failure to co mpl y with, the

6 Const itutio n, laws or regulations; (e) shall nol be offered or received against the Defendant as 7 evidence of a presumption, concess ion, or adm ission of any liabi lil y, negl igence, fau lt, or

8 wro ngdoing; and (d) sha ll not be in any way referred to for any other reason as against any of the

9 Parti es in any oth er civil, criminal , or admi ni strati ve action or proceeding, other than such

10 proceedings as may be necessary to effectuate the provisions of thi s Seul ement Agreement;

II provided, however, that if this Settlement Agreemen t is approved by the Court, Defendant may 12 refer to it and rely upon it to effectuate the liabilit y protect ion gran ted it hereunder.

13

ARTICLE XV

14

PA YMENT OF FEES AND COSTS TO CLASS COUNSEL

15

15.1 As part of this Settlement Agreement, Defendant agrees to pay to Class Counsel

16

the slim of Four Hundred Eighty Three Thousand Dollars ($483,000.00) in full satisfaction of all

17

attorneys' fees, costs, and expenses fo r any and all claims Plaintiffs have asserted or co uld have

18

asserted in this liti gation . No further attorneys' fees o r costs will be paid for any actions taken by

19

Class Counse l (or any individual plaintifrs counsel) after March 30, 2009. Un less othclWise

20

agreed to in writi ng by the Parties, this amount shall be payab le as follows:

21

•

National Seni or C itizens Law Cen ter

5225,000

22

•

Munger, Tolles & Olson LLP

S 141 ,000

23

•

Urban Justice Center

S70,000

24

•

Disability Rights Californ ia

S35,000

25

•

Legal Aid Society of San Maleo

S 12,000

26

15.2 These amounts shall be transmitted by way of an Electroni c Funds Transfcr in

27

accordance with instructions to be provided to SSA by each of the entities li sted in Paragraph

28

8396248,2

- 12 -

STIPULATION OF SETrLEMENT; CASE No. OS-CV-4735CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page15 of 17

15. 1 above. Class Counsel wi ll promptly and fully cooperate wi th required fonns and infonnation

2 necessary for SSA to process payment.

3

15.3 Defendant w ill usc best efforts to arrange for the transfer of these funds wi thin

4 thirty days (30) days following the Effective Date. Defendant shall notify Lead Plaintiffs'

5 Counsel in wriling if Defendant leams that there wi ll be a delay beyond this period.

6

ARTICLE XVI

7

ADD IT IONAL PROVISIONS

8 16. 1 All of the exh ibits attached hereto are hereby incorporated by reference as though
9 fully set forth herein.
10 16.2 The headings herein are used for the purpose of conven ience only and are not
1 1 intended to have lega l effect.
12 16.3 The waiver by one party orany breach of this Sett lemen t Agreement by any other
13 party shall not be deemed a waiver of any other prior or subsequent breach of this Sett lement
14
Agreement. 15
16.4 This Se ul ement Agreement may be executed in o ne or more cou nterparts. All 16
execu ted counterparts and each of them shall be deemed to be one and the same instrument 17
provided that counse l for the parties to this Seulement Agreement shall exchange among 18
themselves original signed counterparts. 19
16.5 This Settlement Agreement shall be binding upon, and inure to the benefit of, the 20
successors and assigns of the partics hereto. Nothing in thi s provision shall be interpreted to 21
contravene 42 U.S.c. § 407 prohibiting transfer or assignment of claims or benefits. 22
16.6 This Scttl ement Agreement shall 110t be construed more strictly agai nst one party
23
than another merely by virtue of the fact that it, or any part orit, may have been prepared by
24
counsel for one of the parties, it being recognized by thc parties that this StipUlation is the result
25
ofaml's length negotiations between the parties and that all parties have contributed substan tiall y
26
and materially to the preparation of this Stipulation.
27

28

8 396 248.2

- 13 -

STIPULATION OF SETrLEM ENT: CASE No. 08-CV-4 7)SC W

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page16 of 17

16.7 All counsel and any other person executi ng this Settlement Agreement and any o f 2 the ex hi bits hereto. or any related settlement documents, warrant and represent that Ihey have the

J full authority to do so and that they have the authority to take appropriate action required or

4 pcnnittcd 10 be taken pursuant to the Settlement Agreement to effectuate its terms.

5

16.8 C lass Counsel and Defendant's Counsel a!,.J'fee to cooperate fully with one another

6 in seek ing preliminary approval from th e Court o f the Settlement Agreem en t and to promptly

7 agree upon and execute all suc h other documentation as may be reasonab ly requ ired to obtai n

8 final approval of the Settlement Agreement.

9

16.9 Class Counsel agree not to encourage any C lass Member, non·profit agency,

10 individual o r attorney to c hall enge the Settlement Agreement or interfere w ith the process of

11 obtaining preliminary or final approval of the Sett lement Agreement from the Court. 12

13

14

15 DATED: Ju ly2 1,2009
16
17
18

NATIONAL SEN IOR CITiZENS LAW CENTER
Attorneys for Plaintiffs , on behalf of Plai ntiffs and all Plaintiffs' Counsel

19

20 21 DATED: July 21, 2009 22
23 24
25
26
27
28

UN ITED STATES ATTORNEY JOSEPH P. RUSSONIELLO Attorney for Defendant
By: ----~V~IC~T~O~R~I~A~R~.~CA ~~ RR~ AD ~E~R~ O----ASSISTANT UN ITED STATES ATTORNEY

8396148 .1

- 14-

STIPULAnON OF SETTLEMENT; C ASE NO. 08-CV-47)S CW

Case4:08-cv-04735-CW Document141 Filed07/21/09 Page17 of 17

16.7 All counsel and any other person executing this Settlement Agreement and any of

2 the exhibits hereto, or any related settlement documents, warrant and represent that they have the

3 fujI authority to do so and that they have the authority to take appropriate action required or

4 pcnniucd to be taken pursuant to the Settlement Agreement to effectuate its tenns.

5

16.8 Class COWlsel and Defendant's Counsel agree to cooperate fully with one another

6 in seeking preliminary approval from the Court of the Settlement Agreement and to promptly

7 agree upon and execute all such other docwnentation as may be reasonably required to obtain

8 final approval of the Settlement Agreement.

9

16.9 Class Counsel agree not to encourage any Class Member, oon-profit agency,

10 individual or attorney to challenge the Settlement Agreement or interfere with the process of

J 1 obtaining preliminary or final approval of the Settlement Agreement from the Court.

12

13

14

15
DATED: Iuly 21 , 2009 16
17
18

NATIONAL SENIOR CITIZENS LAW CENTER
Attorneys for Plaintiffs, on behalf of Plaintiffs and all Plaintiffs' Counsel

19

By:·------'G~E~RAATLDn.A-M~c~~vrno------

20

21 DATED: Iuly21,2009 22
23 24
25
26

UNITED STATES ATTORNEY JOSEPH P. RUSSONIELLO Attorney for Defendant
BY:'---H-'J'~~~~~'~~cfffId' ~~~~ ASSISTANT UNITED STATES ATTORNEY

27

28

1l96lAl.2

- 14 -

STIPULATION Of SEnU.MENT;
CASE NO. G&.Cv~ cw

Case4:08-cv-04735-CW Document141-1 Filed07/21/09 Page1 of 7
Exhibit A

Case4:08-cv-04735-CW Document141-1 Filed07/21/09 Page2 of 7

DAV ID H. FR Y (SBN 189276)
Dav id.Fry@mlo.com 2 MARK R. CONRAD (SBN 255667)
Mark .Conrad@m to.colll 3 J ERE MY S. KROGER (S BN 258956)
.J eremy. Krogcr@mlo.colll 4 MUNGER, TO LLES & O LSO N LLP
560 Miss io n Street , 27th Floo r 5 San Francisco, CA 94 105·2907
T : (41 5) 512-4000 / F: (41 5) 512-4077
6
GERAL D A. Mc iNTY RE (S BN 18 1746) 7 gill cintyre@nscle.org
NAT IONAL SEN IOR CITI ZENS LAW CENTER 8 3435 Wilshire Blvd., Sui te 2860
Los Ange les, CA 900 10- 1938 9 T: (213) 674-2900 / F: (2 13) 639-0934

10 ANNA R ICH (SBN 230 195) arich@nsc lc.org
II KEV IN PRINDI VIL LE (SBN 235835) kprind ivi lle@nsclc.org
12 NAT IONAL SEN IO R C ITIZENS LAW CENTER 1330 Broadway, Suite 525
13 Oakl and, CA 946 12 T: (5 10) 663- 1055 / F: (5 10) 663- 105 1
14 Attomeys for Plai nti ffs
15 ADDITIONAL COUNSEL LI STED ON NEXT PAGE

16

17

UN ITED STATES DISTRlCT COURT

18

NO RTH ERN DISTR ICT OF CA LI FORN IA

19

OA KLAND DI VIS ION

20 ROSA MARTlNEZ, JI MMY HOWARD,
ROBERTA DOBBS, BRENT 21 RODERI CK, SHA RON ROZ IER, and
JOSEPH SUT RYNOW ICZ, on bchalfof
22 themselves and all others simi larl y situated,

23

Plaint iffs,

24

vs.

25 M ICHAEL J . ASTRUE. Comm issioner o f Social Security, in hi s officia l capaci ty,
26
Defend ant. 27

CASE NO. 08-CV-4735 CW
IPROPOSEDI ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CLASS CERTIFI CATION, AND APPOINTMENT OF CLASS COUNSEL, AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING
The Hon. Claudia 'Wilken

28
8396267. 1

11'I{QI'OSEDj QlmER GRANTING ]'LAINT1FFS ' M OTION FOR PRELIMINARY APPRQ VA L OFC lJ\SS
S ElT LI; MENT; CASE NO. 08-C"V-4735 C W

Case4:08-cv-04735-CW Document141-1 Filed07/21/09 Page3 of 7

EM ILI A SIC ILIA es iciIia@urbanj llsti ce.org 2 JENN IFER PAR ISH jparish@urbanjustice.org 3 URBAN JUST ICE CENT ER 123 William Street, 16th Flo 4 New York , NY 10038 T: (646) 602-5668 / F: (212) 533-4598
5 C HRISTOPH£ R A. DOUGLAS (SBN 239556)
6 cdouglas@legalaidsmc.org M. STACEY HAWVER (SBN 1460 12)
7 I11shawver@ legalaidsmc.org LEGAL AID SOCIETY OF SAN MAT EO COUNTY
8 521 East 51h Avenue San Mateo, CA 94402
9 T: (650) 558-0915 / F: (65 0) 558-0673

10 MARILYN HOLL E (S BN 6 1530)

mariIyn. hoII e@disabilityrightsca.0 rg

II DISAB ILITY RIGHTS CA LLFOR NIA

3580 Wilshi re Blvd . Su ite 902

12 Los Ange les, CA 900 10-2522

T: (2 13) 427-8747 / F: (2 13) 427-8767

13

Of Cou nse l for Plaintiffs ROSA MARTlNEZ, JIMMY

14

HO WARD, ROB ERTA DOBBS, BRENT ROD ER IC K,

SHARON ROZ IER, JOSEPH SUT RYNOW ICZ, and all

15

oth ers simil arly situated

16

17 JOSEPH P. RUSSON IELLO (CSBN 44332)

Uni ted States Attorney

18 JOANN M. SWANSON (CS BN 88 143)

Ch ief, Ci vil Divi sion

19 VICTORIA R. CARRADE RO (CSBN 2 17885)

Assistant United States Attorney

20 ANDREW Y.S. C HENG (CSBN 164613)

Assistant United States Attorney

21 M IC HAE L T. PYLE (CSBN 172954)

Assistant United States Attorney

22

450 Golden Gate Avenue, 91h Floor

23

San Francisco, Ca lifornia 94 102·3495

Te lephone: (4 15) 436-6813

24

Facsim ile: (4 15) 436-6748

Email: andrew.cheng@usdoj.gov

25

Attomeys for Federal De fendant

26

27

28
8396267.1

[PROPOSED] ORDER G RANTING I'LAINTIFFS' MonON FOR PRELIMIN ARY APPROVA L OF C LASS
SElTLEM ENT; CASE NO. Q8-CV-4135 CW

Case4:08-cv-04735-CW Document141-1 Filed07/21/09 Page4 of 7

[PROPOSED[ ORDER GRANTING PLAINTIFFS' MOTION FOR

2

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT,

CLASS CERTIFICATION, AND APPOINTMENT OF CLASS COUNSEL,

3

AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING

4

5

WHEREAS, Plaintiffs filed this putative class action on October 15,2008, and

6 filed their First Amended Com plaint on December 12, 2008;

7

WHEREAS, this lawsuit cha ll enges the operat ion and application ofa policy of

8 the Social Security Administration as inconsistent with the federal statutes and agency regulations

9 govcming the Old Age, Survivors, and Disability Insurance ("OASD I"), Supplemental Security

10 Income ("SSI"), and Special Veterans Benefits ("SVB") programs, see 42 U.S.C.

II §§ 402(x)(I)(A)(iv) (OASDI), I004(a)(2) (SVB), I382(e)(4)(A) (SSI); see also 20 C.F.R. §

12 416.1339(b);id§408.810(b);

13

WHEREAS, Defendant vigorous ly denies these allegations;

14

WHEREAS, counsel for Plaintiffs and counse l for the Com mi ssioner of Social

15 Security have reached agreement on the tcrms or a class-wide sett lement of this act ion, which

16 sett lement encompasses the substantia l modification or SSA policies pertaining to the OASDI,

17 SS I, and SVB programs, as we ll as prospective and retroactive relief to indi viduals affected by

18 the challenged policies~

19

WHEREAS, Plaintiffs have submitted a Mot ion ror Preliminary Approval of Class

20 Action Settlement, Class Certificat io n, and Appointment of C lass Counsel, and Directing Class

21 Notice and Setting Final Fairness Hearing;

22

WHEREAS, Derendant does not oppose the action of seeki ng preliminary

23 approval of the sett lement, selliement-ciass certification, appointment of class counsel, directing

24 class notice, and setting a fairness hearing;

25

NOW, THER EFORE, having considered Plaintiffs ' motion, as well as th e

26 memorandum of points and authorities submitted in support thereof, the Court hercby ORDERS

27 as rollows:

28 II

K396267 . 1

-I -

I PRO POSED] ORD ER GRANTING I'LA INTIFFS· M OTION FOR PRELIM INARY APPROVALOFCLASS
SElTLEM ENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document141-1 Filed07/21/09 Page5 of 7

I. Scul emcnt Class. The Court finds: (a) that the members of the proposed

2 sett lement class are sufficiently numerous- with tens of thousands of individuals who cou ld be

3 entitled to relief under the claims asserted through this action- that the joinder of all sllch

4 individuals as plaint iffs in this act ion would be impracticable; (b) that there arc quest iolls of law

5 common to the proposed class, including the lawfu lness of certain po licies adopted by the Social

6 Security Admin istration in its administration of the OASD1, SS!, and SVB federal benefits

7 programs; (c) that the claims of the named p lainti ITs, or c lass representatives, are typical of the

8 claims of the proposed sett lemen t class; and (d) that the class representatives are capable of fairly

9 and adequately protecting the interests of the proposed settlement class. The Court further finds

10 that the Social Security Administration has adm inistered and applied the challenged Po licy in a

11 manner that appli es generally to the proposed sett lement class. Therefore, the Court holds that

12 cert ificat ion of the proposed c lass is appropriate under Federa l Rule of C ivi l Procedure 23(b)(2),

13 and the following class of p laintiffs (hereinafter "Settlement Class") is hereby CERTIF IED:

14

All persons whose SSI, SVB, or OASDI benefits have been suspended or denied,

or who have been notified of a proposed s uspension or denial of such benefits, for

15

"neeing to avoid prosecution or custody or confinement after conviction" for a

felo ny or who are not peml itted to serve as Representative Payees for SSJ, SVB

16

or OASD I benefits for " neei ng to avoid prosecution o r custody or confinement

after conviction" [or a fe lony. The class sha ll not include, and this settlement shall

17

not apply to, any ind ividua l who has rece ived a fina l federal court d isposition

regarding payment or nonpayment of benefits due to fugitive fe lon status.
18

2. Class Counsel. The Court finds that Plaintiffs ' counse l have prov ided and w ill

19

cont inue to provide representation that is adequate to protect the interests of the Settlement C lass.

20

Specifically, the Court finds that Plaint iffs ' counsel have iden tified and investigated potentia l

21

claims, have vigorously prosecuted the lawsuit thus far, and have committed substantial resources

22

to their representat ion of the Settlement Class. Further, Plaintiffs' counsel possess knowledge

23

and expertise suffic ient to represent the interests of the Settlement Class in an action regard ing the

24

rights of beneficiaries under federal entitlement and benefits programs, including the appl ication

25

of the po licy challenged in this lawsuit. Therefore, pursuant to Rule 23(c)( I) and Rule 23(g), the

26

Nationa l Sen ior Cit izens Law Center; the law film of Munger, Tolles & Olson LLP ; the Urban

27

II

28

8396261. 1

-2 -

[ PROPOSEDI ORDER GRAN TING PLA INTI FFS' MOTION FOR PRELIM INARY API' RO VALOFC LA SS
SE1TLEM ENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document141-1 Filed07/21/09 Page6 of 7

Justice Center; the Legal Aid Society of San Mateo County; and Disability Rights Califomia

2 (hereinafter "Class Counsel") are hereby APPOINTED as counsel for the Settlement Class.

3

3. Preliminary Approval of Stipulation ofSettlemen1. The Court finds that the

4 lemlS of the parties' Stipulation of Settlement are fair, reasonable, and adequate to the Settlement

5 Class. Specifically, the Court finds that the SSA's agreement to amend the challenged policy

6 const itutes substantial and immediate prospective relief that has benefited and will benefit the

7 Settlement Class. The Court further finds that the direct relief provided to the vast majority of the

8 Settlement Class- includ ing (a) the reinstatement of class members' benefits denied or suspended

9 on or after January 1, 2007, insofar as the denia l or suspension was premised on fugitive felon

10 status, as explained in the Stipulation ofSettlelllent, and (b) the elimination of outstanding

II overpayment balances based on such fugi tive felon status with the availability of a protective

12 fil ing date for class members whose benefits were denied or suspended between January I, 2000,

13 and December 31, 2006, and are not in pay status as of April 1,2009, based on such fugitive fe lon

14 status, as explained in the StipUlation of Settlement-is a reasonable compromise of claims in

15 light of the complexity and risk of further litigation. Therefore, pursuant to Rule 23(e), the

16 parties' Stipulation ofScltlement is hereby prelim inari ly APPROVED.

17

4. Notice ofSetllemcnl. The Court hereby ORDERS that the SSA shall provide

18 notice to class members by publication of the notice, attached hereto as Exhibit A, on its website.

19 The Court further ORDERS that Class Counsel disseminate the notice to the following

20 organ izations that advance generally the interests of members of the Settlement Class and that

21 have resources necessary to advise class members about the existence and tenns of the Stipu lation

22 or Sett lement: the ABA Commiss ion on Law and Aging; AARP; Bazelon Center for Mental

23 Health Law; Brennan Center for Justice; Center on HIV Law and Policy; Legal Action Center;

24 Consortium for Citizens wi th Disabilities; National Academy of Elder Law Attorneys; National

25 Alliance on Mental Illness; National Disability Rights Network; Nat ional Coalition for the

26 Home less; National Law Center on Homelessness and Poverty; National Organization of Social

27 Security Claimants' Representatives; National Policy and Advocacy Council on Homclessness;

28 II
8396267. 1

-3-

IPROPOSED] ORDER GRANTING PLAINTIFFS ' MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETI'LEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document141-1 Filed07/21/09 Page7 of 7

Ph ilippine Veterans Arrairs Office (Quezon C ity); and Sargent Shri ver National Center on

2 Poverty Law.

3

5. Faimcss Hearing. The Co urt ORDERS that a raim ess hearing for linal

4 approva l orthe Stipu lation ofSctticmcllt shall be held on Thursday, Scptcm ber24, 2009, at 2:00
or 5 p.m. The Court further ORDERS that any objections to the Stipul at ion Settlement shall be

6 filed with the COLIrt not later than Thursday, September 10,2009.

7

8

IT IS SO O RDE R ED.

9

10 DAT ED: 11
12
13 S ubmitted by:
14 DATED: July 21,2009
15

T he Honorable C laud ia A. Wi lken Un ited States District Court Judge
MUNGER, TOLLES & OLSON LLP Attorneys for Plai nt iffs

16

17

By:.________~I.~y7M~a~,.k~~R.C~~oI~',.~a~d~--------

MARK R. CONRAD

18

19

20

21

22
23

24
25 26

27
28
8396267.)

-4 -

[1'IWI'OSE0 1OR[)ER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVALOF CLASS
SETTLEMENT; CASE NO. OS-CV-47J5 CW

Case4:08-cv-04735-CW Document141-2 Filed07/21/09 Page1 of 5
Exhibit B

PolicyNeUlnsCtrausceti4o:n0s8-Ucpv-d0a4t7e3s/5E-CMW-090D2o5c:uFmuegnititv1e41F-e2lonF: iSletodp07S/2u1s/p0e9nsPioangoer2Do.f..5Page 1 of 4

Social&'<.1IrityOnline
www.socialsecurity.gov

Policy Instruction
Previous I Next

Identification Number EM-09025

Effective Date: 04/01 12009

Intended Audience:

All RCs/ARCs/ADs/FOsfTSCs/PSCs/OCO/ODARHQ/ALJs

Originating Office: ORDPOISP

Title:

Fugitive Felon: Stop Suspension or Denial of Individuals with Felony Warrants Affected by the Martinez Settlement

Type:

EM - Emergency Messages

Program:

ntle II (RSI); Title VIII (SVB); Title XVI (SSI)

See References at the bottom of this Link To Reference: EM

Retention Date: October 1, 2009

Background: As a result of a settlement agreement in Martinez, et al. v. Astrue, which should soon be approved by the court, this Emergency Message (EM) provides new instructions for processing Title II , Title VIII , Title XVI payments and representative payee actions that involve outstanding felony wa rrants. Martinez challenged the agency's policy and procedures in applying non payment actions to fugitive felons and non-selection of fugitive felons as representative payees. The settlement agreement requires the agency to Change its processing of certain fugitive felon non-payments and non-selectio ns (representative payees) effective April 1, 2009.
NOTE: The Martinez settlement does not affect SSA's policy or procedures for processing Title II, Title VIII, or Title XVI payments or representative payee actions for cases involving outstanding parole or probation violation wa rrants (e.g. offense codes 5011 and 5012.) Therefore, continue to follow current instructions for processing cases involving these warrants.
Martinez Settlement Policy Effective immediately, SSA policy is to suspend or deny Title II and Title VIII benefits or Title XVI payments, and to prohibit an individual from serving as a representative payee only if the individual's outstanding felony warrant was issued for one of the following three offenses:
• Escape (offense code 4901 ), • Flight to Avoid prosecution, confinement, etc. (offense code
4902), and • Flight-Escape (offense code 4999) .

If more than one felony warrant exists, only suspend, deny, or do not select as a representative payee only for months during which the individual has a

https:llsecure .ssa.gov/apps1 0/publicireference.nsf/8b709aba3e20aOdd852574da ... 7/21 /2009

PolicyNeUlnsCtrausceti4o:n0s8-Ucvp-d0a4t7e3s5/E-CMW-090D2o5c:uFmuegnitti1ve41F-e2lonF: iSletdo0p7S/2u1s/p0e9nsPioangoe3r .o..f 5 Page 2 of 4
felony warrant with one of these three offense codes.
Processing Instructions Apply the following instructions to individuals in all states including New York, Connecticut, and Vermont. The Marlin ez settlement should be used instead of referencing the Fowlkes Acquiescence Ru ling (AR 06-1(2)).
I . Initiate action for suspension, non-payment, or claims denial based on an outstanding felony warrant with a felony offense code of 4901 , 4902, or 4999 shown on the Fugitive Felon System Control File.
2. If an appeal is pending at the reconsideration, hearing , or Appea ls Council level, apply the policy in this EM when making the appeal decision .
3. If a representative payee applicant or an existing representative payee has an outstanding felony warrant for offense code 4901 , 4902 , or 4999, the individual wi ll be prohibited from serving as a representative payee. If any other felony warrant information comes to the attention of the decision-maker, it will be used to determine an applicant's suitability (or continued suitability) to serve as a representative payee.
Title II Initial Claims The Agency no longer asks Title II applicants or claimants about thei r felony status on any of the Title II benefit applications. For additional information, see GN 02613.050.
Title XVI/Title VIII Eligibility Determinations For Title XVIlTitie VIII initial claims, a felony status question still exists on applications. To determine eligibility, verify the felony warrant offense code information to ensure that the individual does not have one of the three offense codes listed above. Complete the fugitive felon questions on the Law Enforcement (ALEF) and Felony Warrant (AWRF) screens. The good cause code "DNH " (individual is residing in a long term care facility) will now also be used to code cases that fall under the Mar/inez Settlement provisions in order to prevent non-payment of benefits.
Follow current procedures for completing MSSICS screens (MSOM MSSICS 008 .022 and MSOM MSSICS 008.023) . However, to ensure that payments will continue, also do the following:
• On the AWRF screen, enter "1- (Established) in the GOOD CAUSE field.
• On the DW01 screen in MSSICS, enter "Martinez Settlement" in Remarks.
• On the FFDG (Fugitive Felon Warrant Due Process/Good Cause) screen withi n the FFSCF (Fugitive Felon SSA Control File), enter "DNH " as the Good Cause reason.
• On the Good Cause Screen in FFAP (Fugitive Felon Automated
https:llsecure.ssa.gov/apps1 0/public/reference.nsfl8b709aba3e20aOdd852574da. .. 7/21/2009

PolicyNeVlnsCtrausceti4o:n0s8-Ucvp-d0a4t7e3s/5E-CMW-090D2o5c:uFmuegintitv1e41F-e2lonF: iSletdop07S/2u1s/p0e9nsPioangoer4.of 5Page 3 of 4
Process) document that Martinez relief was granted to the case by entering the " DNH" code.
Rep rese ntative Payce Applications For represen tative payees, the question about fe lony status still exists on applications. If the appli cant responds that he or she has an o utstand ing fe lony warra nt. verify the offense code with OIG (see ON 026 13.175 and Sl 00530.150.) Jf the fe lony warrant o ffense code is 490 I, 4902, or 4999, do not selec t the payee app li cant. Genera ll y. any criminal hi story casts serious doubt about the payee app licant ' s character. For any other felony offense code, consider the reason for that warrant and the payeelbeneficiary relationship in making the suitabi lity determi nation.
Identification of Individuals Affected by the Martinez Settlement Identification of individua ls a ffected by the Martinez settlement will be done centra lly and appropriate notices released. Comprehensive instructions on how to handl e these cases wi ll also be re leased at a later date. In the meantim e, if indiv iduals contact SSA on the ir own initiati ve about the Martinez se ttl ement or because they recently received a notice telling them that their benefits are bein g suspended or that they are not being sel ected as a representat ive payee because of an outstanding warrant for a felony other than the felony offense codes above, fo ll ow the instructi ons below.
A. Field Office Walk-I." Traffic/Phone Ca lls Eac h FO must maintain and preserve a list of individuals who contact the FO and state they might be due payments in connection wi th the Martinez se ttlement. Include on the list, the name, SSN, current address, and phone number for each indi vidual.
No further aclions should be taken al thi s time. Additional process ing instructions wi ll be issued at a later datc . See also Pipelinc Cases, below.
Il. TS C Ca lls If an ind ivid ual calls the national 800 number about the Mar/inez settleme nt, the 800 number agent will c reate a Manual Development Worksheet (MDW) and include the individual 's name, SSN, current address, and phone number. Explain that no furthe r action can be taken at thi s time, but their contact information will be provided to the individua l's se rvicing field offiee for future act ions. Include in REMARKS the wo rds "Martin ez Settlement" and transfer the MDW to the servici ng field office.
Ifan indi vidual ca ll s the national 800 number about recei ving a notice of fugit ive fe lon nonpayment on or after April 1,2009, explain the infoffilat ion in Pipeline Cases, be low.
C. Pipeline Cases Title II - Due to the nature of the automated system that the agency has been using for fugitive fel on non· payment processing, there may be cases in the pipeline whieh were al ready hand led under the prior policy whieh resulted in non·payment for a ll
https:/Isecure.ssa.gov/apps10/publiclreference. nsf/8b709aba3e20aOdd852574da ... 7/21/2009

PolicyNetilnsCtrausceti4o:n0s8-Ucvp-d0a4t7e3s5/E-CMW-090D2o5c:uFmuegnitti1ve41F-e2lonF: iSletdo0p7S/2u1s/p0e9nsPioangeo5r .of 5 Page 4 of 4
felony offense codes. Thi s automated system releases ad vance notices of proposed suspens ion and provides a 35-day protest period be fo re suspension actio ns can be taken. Because the automation of these pipeline cases can result in non-pay ments on or after April 1,2009, SSA may not be able to take all corrective ac tions as requ ired by the Marlinez settl e ment until a later date .
Il owevcr, beg inni ng April 1,2009, if a benefi ciary contacts SSA within the 35-day advance notice protest period and the offense code on the warrant is other than 490 1, 4902. 4999 (or a parole or probation offense code,) process a protest act ion to stop suspensio n of benefits accordi ng to ON 02613.450.
Title XVI - For cases pending a felony suspension action in a field o ffi ce, per the policy above. only suspend payments if the offense code on the warrant is 490 I, 4902, 4999 . No change is required for probat ion and parole violation suspension actio ns.
I), Good Ca use Requests
Continue to process good cause requests for any felony suspension or
denial determinations following current instructions in GN 02613.025 and SI 00530 .015
If good cause cannot be approved , and the suspension/nonpayment/denial was based on a fe lony warrant with an offense code other than 4901, 4902 , or 4999. include the benefi ciary or recipient on the FO li st of M artinez contacts as indicated above .
Further Instructions and Additional Questions Additional Martinez settlement processing instructions will be issued in the future.
Direct all program related and technical questions to your RO or PC support staff. RO and PC support staff may refer questions or problems to their Central Office contacts.
References:
SI 00530.000 Fugitive Felons and Parole and Probation Violators GN 02613.000 Title II Fugitive Felons and Parole and Probation Violators VB 00 101 .000 General Information on Special Veterans Benefits GN 00504.102 Representative Payees Identified by the Fugitive Felon Match
£M09025 Fugitive Felon' Stop Suspension or Denial of Individuals with Felony Warrants Affected by the Martinez Senlemen\· 0410112009
Privacy Policy I Website Policies & Other Important Information
https :llsecure.ssa.gov/a pps1 0/public/reference.nsf/8b709aba3e20aOdd852574da ... 7/2 1/2009

Case4:08-cv-04735-CW Document141-3 Filed07/21/09 Page1 of 2
Exhibit C

PolicyNeUlnsCtrausceti4o:n0s8-Ucvp-d0a4t7e3s/5E-CMW-090D2o4c:uSmuesnpte1n4s1io-3n ofFRileedp0re7s/2e1n/t0a9tivePaPgaey2eeo/f..2. Page 1 of 1

SocialSectuityOnline
www.soc ialsec urity.gov

Policy Instruction
Previous I Next

Identification Number EM-09024

Effective Date: 03131/2009

All

Intended Aud ie nce: RCsJARCsIADsIFOsITSCsJPSCsJOCOIOCO-

CSTs/ODARHOIALJs

Originating Office: ORDPOISP

Title :

Suspension of Representative Payee/Fugitive Felon Match ProcessMa nualized instructions will follow s hortly

Type:

EM - Emergency Messages

Program:

Title II (RSII; Title VIII (SVB); Hie XVI (SSI)

Lin k To Refe rence: See references at the bottom of the EM .

Retention Date: September 30, 2009

Effective immediately, do not initiate actions to replace payees identified by the Rep Payee/ Fugitive Felon match process as described in GN 00504.102. That is, if advance notice to the payee has not yet been sent, take no action on the alert at this time.
If advance notice to the payee has already been sent out, complete your action to replace the payee as reflected in GN 00504.102C-F.
These instructions are temporary and are being issued due to a proposed settlement agreement in Martinez et al. v. Astrue. You will be provided with additional instructions shortly.
Direct all program related and technica l questions to your RO or PC support staff. RO and PC support staff may refer questions or problems to their Central Office contacts.
References :
GN 00504.102 - Representative Payees Identified by the Fugitive Felon Match MSOM RPS 001.014 - RPS/Fugitive Felon Interface Alert
EM 09024 s...spenr.oon of Represeruabve PayeeIFugill'o'e Felon Match Process-ManuallZed IOStructJons wdlloUow 5hcH11y . 0")112009
Privacy Policy I Website Policies & Other Important Information

https:/Isecure .ssa.gov/apps1 O/public/reference. nsfl8b709aba3e20aOdd852574da... 7/21/2009

 
 Case4:08-cv-04735-CW Document146 Filed08/12/09 Page1 of 6

1 DAVID H. FRY (SBN 189276) David.Fry@mto.com
2 MARK R. CONRAD (SBN 255667) Mark.Conrad@mto.com
3 JEREMY S. KROGER (SBN 258956) Jeremy.Kroger@mto.com
4 MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor
5 San Francisco, CA 94105-2907 T: (415) 512-4000 / F: (415) 512-4077
6
GERALD A. McINTYRE (SBN 181746) 7 gmcintyre@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER 8 3435 Wilshire Blvd., Suite 2860
Los Angeles, CA 90010-1938 9 T: (213) 674-2900 / F: (213) 639-0934

10 ANNA RICH (SBN 230195) arich@nsclc.org
11 KEVIN PRINDIVILLE (SBN 235835) kprindiville@nsclc.org
12 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
13 Oakland, CA 94612 T: (510) 663-1055 / F: (510) 663-1051
14 Attorneys for Plaintiffs
15 ADDITIONAL COUNSEL LISTED ON NEXT PAGE

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20 ROSA MARTINEZ, JIMMY HOWARD, ROBERTA DOBBS, BRENT
21 RODERICK, SHARON ROZIER, and JOSEPH SUTRYNOWICZ, on behalf of
22 themselves and all others similarly situated,

23

Plaintiffs,

24

vs.

25 MICHAEL J. ASTRUE, Commissioner of Social Security, in his official capacity,
26
Defendant. 27

CASE NO. 08-CV-4735 CW
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CLASS CERTIFICATION, AND APPOINTMENT OF CLASS COUNSEL, AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING
The Hon. Claudia Wilken

28
8396267.1

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document146 Filed08/12/09 Page2 of 6

1 EMILIA SICILIA esicilia@urbanjustice.org
2 JENNIFER PARISH jparish@urbanjustice.org
3 URBAN JUSTICE CENTER 123 William Street, 16th Fl.
4 New York, NY 10038 T: (646) 602-5668 / F: (212) 533-4598
5 CHRISTOPHER A. DOUGLAS (SBN 239556)
6 cdouglas@legalaidsmc.org M. STACEY HAWVER (SBN 146012)
7 mshawver@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
8 521 East 5th Avenue San Mateo, CA 94402
9 T: (650) 558-0915 / F: (650) 558-0673

10 MARILYN HOLLE (SBN 61530)

marilyn.holle@disabilityrightsca.org

11 DISABILITY RIGHTS CALIFORNIA

3580 Wilshire Blvd. Suite 902

12 Los Angeles, CA 90010-2522

T: (213) 427-8747 / F: (213) 427-8767

13

Of Counsel for Plaintiffs ROSA MARTINEZ, JIMMY

14

HOWARD, ROBERTA DOBBS, BRENT RODERICK,

SHARON ROZIER, JOSEPH SUTRYNOWICZ, and all

15

others similarly situated

16

17 JOSEPH P. RUSSONIELLO (CSBN 44332)

United States Attorney

18 JOANN M. SWANSON (CSBN 88143)

Chief, Civil Division

19 VICTORIA R. CARRADERO (CSBN 217885)

Assistant United States Attorney

20 ANDREW Y.S. CHENG (CSBN 164613)

Assistant United States Attorney

21 MICHAEL T. PYLE (CSBN 172954)

Assistant United States Attorney

22

450 Golden Gate Avenue, 9th Floor

23

San Francisco, California 94102-3495

Telephone: (415) 436-6813

24

Facsimile: (415) 436-6748

Email: andrew.cheng@usdoj.gov

25

Attorneys for Federal Defendant

26

27

28
8396267.1

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document146 Filed08/12/09 Page3 of 6

1 [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR

2

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT,

CLASS CERTIFICATION, AND APPOINTMENT OF CLASS COUNSEL,

3

AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING

4

5

WHEREAS, Plaintiffs filed this putative class action on October 15, 2008, and

6 filed their First Amended Complaint on December 12, 2008;

7

WHEREAS, this lawsuit challenges the operation and application of a policy of

8 the Social Security Administration as inconsistent with the federal statutes and agency regulations

9 governing the Old Age, Survivors, and Disability Insurance (“OASDI”), Supplemental Security

10 Income (“SSI”), and Special Veterans Benefits (“SVB”) programs, see 42 U.S.C.

11 §§ 402(x)(1)(A)(iv) (OASDI), 1004(a)(2) (SVB), 1382(e)(4)(A) (SSI); see also 20 C.F.R. §

12 416.1339(b); id § 408.810(b);

13

WHEREAS, Defendant vigorously denies these allegations;

14

WHEREAS, counsel for Plaintiffs and counsel for the Commissioner of Social

15 Security have reached agreement on the terms of a class-wide settlement of this action, which

16 settlement encompasses the substantial modification of SSA policies pertaining to the OASDI,

17 SSI, and SVB programs, as well as prospective and retroactive relief to individuals affected by

18 the challenged policies;

19

WHEREAS, Plaintiffs have submitted a Motion for Preliminary Approval of Class

20 Action Settlement, Class Certification, and Appointment of Class Counsel, and Directing Class

21 Notice and Setting Final Fairness Hearing;

22

WHEREAS, Defendant does not oppose the action of seeking preliminary

23 approval of the settlement, settlement-class certification, appointment of class counsel, directing

24 class notice, and setting a fairness hearing;

25

NOW, THEREFORE, having considered Plaintiffs’ motion, as well as the

26 memorandum of points and authorities submitted in support thereof, the Court hereby ORDERS

27 as follows:

28 //
8396267.1

- 1 -

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document146 Filed08/12/09 Page4 of 6

1

1. Settlement Class. The Court finds: (a) that the members of the proposed

2 settlement class are sufficiently numerous—with tens of thousands of individuals who could be

3 entitled to relief under the claims asserted through this action—that the joinder of all such

4 individuals as plaintiffs in this action would be impracticable; (b) that there are questions of law

5 common to the proposed class, including the lawfulness of certain policies adopted by the Social

6 Security Administration in its administration of the OASDI, SSI, and SVB federal benefits

7 programs; (c) that the claims of the named plaintiffs, or class representatives, are typical of the

8 claims of the proposed settlement class; and (d) that the class representatives are capable of fairly

9 and adequately protecting the interests of the proposed settlement class. The Court further finds

10 that the Social Security Administration has administered and applied the challenged Policy in a

11 manner that applies generally to the proposed settlement class. Therefore, the Court holds that

12 certification of the proposed class is appropriate under Federal Rule of Civil Procedure 23(b)(2),

13 and the following class of plaintiffs (hereinafter “Settlement Class”) is hereby CERTIFIED:

14

All persons whose SSI, SVB, or OASDI benefits have been suspended or denied,

or who have been notified of a proposed suspension or denial of such benefits, for

15

“fleeing to avoid prosecution or custody or confinement after conviction” for a

felony or who are not permitted to serve as Representative Payees for SSI, SVB

16

or OASDI benefits for “fleeing to avoid prosecution or custody or confinement

after conviction” for a felony. The class shall not include, and this settlement shall

17

not apply to, any individual who has received a final federal court disposition

regarding payment or nonpayment of benefits due to fugitive felon status. 18

2. Class Counsel. The Court finds that Plaintiffs’ counsel have provided and will

19

continue to provide representation that is adequate to protect the interests of the Settlement Class.

20

Specifically, the Court finds that Plaintiffs’ counsel have identified and investigated potential

21

claims, have vigorously prosecuted the lawsuit thus far, and have committed substantial resources

22

to their representation of the Settlement Class. Further, Plaintiffs’ counsel possess knowledge

23

and expertise sufficient to represent the interests of the Settlement Class in an action regarding the

24

rights of beneficiaries under federal entitlement and benefits programs, including the application

25

of the policy challenged in this lawsuit. Therefore, pursuant to Rule 23(c)(1) and Rule 23(g), the

26

National Senior Citizens Law Center; the law firm of Munger, Tolles & Olson LLP; the Urban

27

//

28

8396267.1

- 2 -

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document146 Filed08/12/09 Page5 of 6

1 Justice Center; the Legal Aid Society of San Mateo County; and Disability Rights California

2 (hereinafter “Class Counsel”) are hereby APPOINTED as counsel for the Settlement Class.

3

3. Preliminary Approval of Stipulation of Settlement. The Court finds that the

4 terms of the parties’ Stipulation of Settlement are fair, reasonable, and adequate to the Settlement

5 Class. Specifically, the Court finds that the SSA’s agreement to amend the challenged policy

6 constitutes substantial and immediate prospective relief that has benefited and will benefit the

7 Settlement Class. The Court further finds that the direct relief provided to the vast majority of the

8 Settlement Class—including (a) the reinstatement of class members’ benefits denied or suspended

9 on or after January 1, 2007, insofar as the denial or suspension was premised on fugitive felon

10 status, as explained in the Stipulation of Settlement, and (b) the elimination of outstanding

11 overpayment balances based on such fugitive felon status with the availability of a protective

12 filing date for class members whose benefits were denied or suspended between January 1, 2000,

13 and December 31, 2006, and are not in pay status as of April 1, 2009, based on such fugitive felon

14 status, as explained in the Stipulation of Settlement—is a reasonable compromise of claims in

15 light of the complexity and risk of further litigation. Therefore, pursuant to Rule 23(e), the

16 parties’ Stipulation of Settlement is hereby preliminarily APPROVED.

17

4. Notice of Settlement. The Court hereby ORDERS that the SSA shall provide

18 notice to class members by publication of the notice, attached hereto as Exhibit A, on its website.

19 The Court further ORDERS that Class Counsel disseminate the notice to the following

20 organizations that advance generally the interests of members of the Settlement Class and that

21 have resources necessary to advise class members about the existence and terms of the Stipulation

22 of Settlement: the ABA Commission on Law and Aging; AARP; Bazelon Center for Mental

23 Health Law; Brennan Center for Justice; Center on HIV Law and Policy; Legal Action Center;

24 Consortium for Citizens with Disabilities; National Academy of Elder Law Attorneys; National

25 Alliance on Mental Illness; National Disability Rights Network; National Coalition for the

26 Homeless; National Law Center on Homelessness and Poverty; National Organization of Social

27 Security Claimants’ Representatives; National Policy and Advocacy Council on Homelessness;

28 //
8396267.1

- 3 -

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document146 Filed08/12/09 Page6 of 6

1 Philippine Veterans Affairs Office (Quezon City); and Sargent Shriver National Center on

2 Poverty Law.

3

5. Fairness Hearing. The Court ORDERS that a fairness hearing for final

4 approval of the Stipulation of Settlement shall be held on Thursday, September 24, 2009, at 2:00

5 p.m. The Court further ORDERS that any objections to the Stipulation of Settlement shall be

6 filed with the Court not later than Thursday, September 10, 2009.

7

8

IT IS SO ORDERED.

9 8/12/09
10 DATED: _____________________ 11
12

The Honorable Claudia A. Wilken United States District Court Judge

13 Submitted by:
14 DATED: August 12, 2009
15

MUNGER, TOLLES & OLSON LLP Attorneys for Plaintiffs

16

17

By:

/s/ Mark R. Conrad

MARK R. CONRAD

18

19

20

21

22

23

24

25

26

27

28
8396267.1

- 4 -

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE NO. 08-CV-4735 CW

 
 Case4:08-cv-04735-CW Document142 Filed07/21/09 Page1 of 24

1 DAVID H. FRY (SBN 189276) David.Fry@mto.com
2 MARK R. CONRAD (SBN 255667) Mark.Conrad@mto.com
3 JEREMY S. KROGER (SBN 258956) Jeremy.Kroger@mto.com
4 MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor
5 San Francisco, CA 94105-2907 T: (415) 512-4000/ F: (415) 512-4077
6
GERALD A. McINTYRE (SBN 181746) 7 gmcintyre@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER 8 3435 Wilshire Blvd., Suite 2860
Los Angeles, CA 90010-1938 9 T: (213) 674-2900/ F: (213) 639-0934

10 ANNA RICH (SBN 230195) arich@nsclc.org
11 KEVIN PRINDIVILLE (SBN 235835) kprindiville@nsclc.org
12 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
13 Oakland, CA 94612 T: (510) 663-1055 / F: (510) 663-1051
14 Attorneys for Plaintiffs
15 ADDITIONAL COUNSEL LISTED ON NEXT PAGE

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20 ROSA MARTINEZ, JIMMY HOWARD,
ROBERTA DOBBS, BRENT 21 RODERICK, SHARON ROZIER, and
JOSEPH SUTRYNOWICZ, on behalf of 22 themselves and all others similarly situated,

23

Plaintiffs,

24

vs.

CASE NO. 08-CV-4735 CW
NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROV AL OF CLASS ACTION SETTLEMENT, CLASS CERTIFICATION, AND APPOINTMENT OF CLASS COUNSEL, AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING

25 MICHAEL J. ASTRUE, Commissioner of Social Security, in his official capacity,
26
Defendant. 27

Date: Time: Dept:

August 11, 2009 2:00 p.m. Courtroom 2

The Honorable Claudia Wilken

28
8396393.1

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTLEMENT, CLASS CERT., & APPT. OF COU!'iSEL; MEMO. OF PS&AS;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page2 of 24

1 EMILIA SICILIA esicilia@urbanjustice.org
2 JENNIFER PARISH jparish@urbanjustice.org
3 URBAN JUSTICE CENTER 123 William Street, 16th Fl.
4 New York, NY 10038 T: (646) 602-5668 / F: (212) 533-4598
5 CHRISTOPHER A. DOUGLAS (SBN 239556)
6 cdouglas@ legalaidsmc.org M. STACEY HAWVER (SBN 146012)
7 mshawver@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
8 521 East 5th Avenue San Mateo, CA 94402
9 T: (650) 558-0915 / F: (650) 558-0673

10 MARILYN HOLLE (SBN 61530)

marilyn.holle@disabilityrightsca.org

11 DISABILITY RIGHTS CALIFORNIA

3580 Wilshire Blvd. Suite 902

12 Los Angeles, CA 90010-2522

T: (213) 427-8747 / F: (213) 427-8767

13

Of Counsel for Plaintiffs ROSA MARTINEZ, JIMMY

14

HOWARD, ROBERTA DOBBS, BRENT RODERICK,

SHARON ROZIER, JOSEPH SUTRYNOWICZ, and all

15

others similarly situated

16

17

18

19

20

21

22

23

24

25

26

27

28
83%393.1

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETTLEMENT, CLASS CERT., & MPT. OF COUNSEL; MEMO. OF Ps&As;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page3 of 24

1

NOTICE OF MOTION

2

TO THE COURT, ALL PARTIES AND COUNSEL OF RECORD:

3

PLEASE TAKE NOTICE that on Tuesday, August 11,2009, at 2:00 p.m., before the

4 Honorable Claudia Wilken, at the United States Courthouse at 1301 Clay Street, Oakland, CA

5 94612, Plaintiffs will and hereby do move the Court for an order that:

6

7

(1) certifies this action as a class action and certifies the following class of plaintiffs

8

("Settlement Class"), pursuant to Federal Rules of Civil Procedure 23(b)(2) and

9

23(c)(1), who have been affected by the operation and application of a policy of the

10

Social Security Administration with respect to statutes and regulations governing the

11

Old Age, Survivors, and Disability Insurance ("OASDI"), Supplemental Security

12

Income ("SSI"), and Special Veterans Benefits ("SVB") programs, see 42 U.S.c.

13

§§ 402(x)(1)(A)(iv) (OASDI), 1004(a)(2) (SVB), 1382(e)(4)(A) (SSI); see also 20

14

C.F.R. § 416.1339(b); id § 408.81O(b):

15

All persons whose SSI, SVB, or OASDI benefits have been suspended

or denied, or who have been notified of a proposed suspension or

16

denial of such benefits, for "fleeing to avoid prosecution or custody or

confinement after conviction" for a felony or who are not permitted to

17

serve as Representative Payees for SSI, SVB or OASDI benefits for

"fleeing to avoid prosecution or custody or confinement after

18

conviction" for a felony. The class shall not include, and this

settlement shall not apply to, any individual who has received a final

19

federal court disposition regarding payment or nonpayment of benefits

due to fugitive felon status. 20

(2) appoints Plaintiffs' counsel as Class Counsel for the Settlement Class pursuant to

21

Rules 23(g) and 23(c)(1);

22

(3) preliminarily approves the Stipulation of Settlement and the compromise of class

23

claims described therein, pursuant to Rule 23(e);

24

(4) approves the proposed form of notice to the Settlement Class; and

25

(5) schedules a fairness hearing for Thursday, September 24,2009, at 2:00 p.m. for final

26

approval of the Stipulation of Settlement, with any objections to the Stipulation of

27

Settlement to be filed not later than September 10, 2009.

28

8396393.1

NOT. OF MOT. & MOT. FOR PRELIM. MP. OF SETILEMENT, CLASS CERT., & MPT. OF COUNSEL; MEMO. OF Ps&AS;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page4 of 24

1

This Motion is made pursuant to the Federal Rules of Civil Procedure 23 and 54. The

2 Motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities,

3 the Declaration of Gerald A. McIntyre filed concurrently herewith, and such additional argument

4 as the parties may present at the hearing on this Motion.

5
DATED: July 21,2009 6

MUNGER, TOLLES & OLSON LLP Attorneys for Plaintiffs

7

8

By:________~!.=s/~At~a~rk~R~.~C~on~~~a=d___________

MARK R. CONRAD 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
8396393.1

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTI.EMENT,
CLASS CERT., & ApPT. OF COUNSEL; MEMO. OF Ps&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page5 of 24

1

TABLE OF CONTENTS

2

Page

3 I. 4 II.
5 6 7 8 9
III. 10

INTRODUCTION .............................................................................................................. 1 BACKGROUND ................................................................................................................ 2 A. Nature of the Claims ............................................................................................... 2
B. Procedural Background........................................................................................... 3 C. The Stipulation of Settlement ............... '" ............................................................... 4
D. SSA's Implementation and Expected Timeframes ................................................. 7 1. Policy Change ............................................................................................. 7 2. Provision of Retroactive Relief.. ................................................................. 8
CERTIFICATION OF THE SETTLEMENT CLASS IS APPROPRIATE UNDER RULE 23(A) AND RULE 23(B)(2)................................................................................... 9

11

A. The Settlement Class Meets the Numerosity, Commonality, Typicality, and

Adequacy Requirements Set Forth in Rule 23(a)................................................... 9

12 B. The Settlement Class Should Be Certified Pursuant to Rule 23(b)(2)

13

Because SSA's Challenged Policy Applies Generally to the Class...................... 11

14 IV. APPOINTMENT OF PLAINTIFFS' COUNSEL AS CLASS COUNSEL IS APPROPRIATE UNDER RULE 23(G)........................................................................... 11

15 V.
16

APPROVAL OF THE PARTIES' PROPOSED SETTLEMENT AGREEMENT IS APPROPRIATE UNDER RULE 23(E)........................................................................... 12

VI. NOTICE TO SETTLEMENT CLASS ............................................................................. 14 17
VII. CONCLUSION ................................................................................................................. 16

18

19

20

21

22

23

24

25

26

27

28
8396393.1

- 1-

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTLEMENT, CLASS CERT., & APPT. OF COliNSEL; MEMO. OF PS&AS;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page6 of 24

1

TABLE OF AUTHORITIES

2

Page(s)

3

FEDERAL CASES

4 Amchem Prods., Inc. v. Windsor,

5

521 U.S. 591 (1997) .................................................................................................................. 9

6

Blakely v. Comm'r Soc. Sec., 330 F. Supp. 2d 910 (W.D. Mich. 2004) .................................................................................. 3

7 Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July 10, 2008) ........................................................................ 3

8 Califano v. Yamasaki,

9

442 U.S. 682 (1979) ................................................................................................................ 11

Celano v. Marriott Int'l, Inc.,

10

242 F.R.D. 544 (N.D. Cal. 2007) .............................................................................................. 9

11

Churchill Village, LLC v. Gen. Elec. Co., 361 F.3d 566 (9th Cir. 2004) ................................................................................................. 14

12 Class Plaintiffs v. City ofSeattle, 955 F.2d 1268 (9th Cir. 1992) ................................................................................................ 14

13 Dukes v. Wal-Mart, Inc.,

14

509 F.3d 1168 (9th Cir. 2007) ................................................................................................ 11

Fontana v. Elrod,

15

826 F.2d 729 (7th Cir. 1987) ................................................................................................. 15

16

Forbush v. J.e. Penney Co., Inc.,
994 F.2d 1101 (5th Cir. 1993) ................................................................................................ 10

17 Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005).................................................................................................. 3, 12

18 Garnes v. Barnhart,

19

352 F. Supp. 2d 1059 (N.D. Cal. 2004) .................................................................................... 3

Gen. Tel. Co. of the Nw., Inc. v. EEOC,

20

446 U.S. 318 (1980) .................................................................................................................. 9

21

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .......................................................................................... 10, 13

22 Hull v. Barnhart,
336 F. Supp. 2d 1113 (D. Or. 2004) ......................................................................................... 3

23 Kincade v. Gen. Tire & Rubber Co.,

635 F.2d 501 (5th Cir. 1981) ................................................................................................. 15 24

Lerwill v. lriflight Motion Pictures, Inc.,

25

582 F.2d 507 (9th Cir. 1978) .................................................................................................. 11

26

Linney v. Cellular Alaska P'ship, 151 F.3d 1234 (9th Cir. 1998) ................................................................................................ 11

27 Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) .............................................................................................. 9
28

8396393.1

-11-

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETTI.EMENT. CLASS CERT., & ApPT. OF COUNSEL; MEMO. OF PS&As;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page7 of 24

TABLE OF AUTHORITIES

(continued)

2

Page(s)

3 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ............................................................................................................... 14

4 Reff v. Astrue,

5

2008 WL 4277713 (D. Minn. Sept. 15, 2008) .......................................................................... 3

Silber v. Mabon,

6

18 F.3d 1449 (9th Cir. 1994) .................................................................................................. 14

7

Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) .................................................................................................. 10

8 Thomas v. Barnhart, 2004 WL 1529280 (D. Me. June 24, 2004) .............................................................................. 3
9 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ................................................................................................ 10
10

11
FEDERAL STATUTES
12 42 U.S.C. § 402(x)(1)(A)(iv) .......................................................................................................... 2
13 42 U.S.C. § 405(g) ........................................................................................................................ 14
14 42 U.S.C. § 1004(a)(2) .................................................................................................................... 2
15 42 U.S.C. § 1382(e)(4)(A) .............................................................................................................. 2

16

17

FEDERAL RULES

18 Fed. R. Civ. P. 23 ...................................................................................................................... 9,11

19
FEDERAL REGULATIONS
20 20 C.F.R. § 416.1339(b) ................................................................................................................. 2
21 20 C.F.R. § 408.810(b) ................................................................................................................... 2
22

23

OTHER AUTHORITIES

24 7AA Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and

25

Procedure § 1775, at 73 (3d ed. 2005) ............................................................................. 11, 15

26 Social Security Administration, EM-09024 .................................................................................... 4 Social Security Administration, EM-09025 .................................................................................... 4
27

28
8396393.1

- iii -

PLAINTIFFS' OMNIBUS BRIEF RE: SUMMARY JUDGMENT,
PRELIMINARY INJUNCTION, CLASS CERTIFICATION, AND
MOTIONS TO DISMISS; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page8 of 24

1

TABLE OF AUTHORITIES

(continued)

2

Page(s)

3 Social Security Administration, SS! Federally Administered Payments,

available at http://www.ssa.gov/policy/docs/statcomps/ssi_monthly12009-

4

05/table07.pdf (last visited July 21, 2009) ................................................................................. 5

5

Social Security Administration, 2009 Social Security Changes, available at http://www.ssa.gov/pressoffice/factsheets/colafacts2009.pdf (last visited

July 21, 2009)............................................................................................................................ 5 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
8396393.1

- IV-

PLAINTIFFS' OMNIBUS BRIEF RE: SUMMARY JUDGMENT,
PRELIMINARY INJUNCTION, CLASS CERTIFICATION, AND
MOTIONS TO DISMISS; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page9 of 24

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

3 I. INTRODUCTION

4

This lawsuit was filed to challenge the Social Security Administration's ("SSA") policy,

5 in connection with its administration of the Old Age, Survivors, and Disability Insurance

6 ("OASDI"), Supplemental Security Income ("SSI"), and Special Veterans Benefits ("SVB")

7 programs (collectively, the "Federal Benefits Programs"), of denying and suspending benefits,

8 and of denying certification to and decertifying representative payees, whenever a beneficiary or

9 representative payee is the subject of an outstanding felony warrant.

10

After extensive arm's-length negotiations, the parties have reached agreement on the terms

11 of a settlement which, if approved by the Court, would resolve the case. See Declaration of

12 Gerald A. McIntyre ("McIntyre Decl."), Exh. 1 ("Stipulation of Settlement"). As part of the

13 proposed settlement, SSA has changed its policy, effective April 1,2009, in all pending and

14 future determinations. SSA has replaced the challenged policy with a new directive, pursuant to

15 which the agency has agreed hereafter to deny applications or suspend benefits--or deny

16 certification or decertify representative payees--only in cases where those applicants,

17 beneficiaries, or representative payees are subject to a warrant that bears a code specifically

18 identifying the relevant felony as involving "flight" or "escape," i.e. National Crime Information

19 Center Uniform Offense Classification Codes of 4901 (escape), 4902 (flight to avoid) and 4999

20 (flight-escape).

21

The Stipulation of Settlement further provides for payment of full retroactive benefits to

22 otherwise eligible members of the proposed Settlement Class whose benefits were denied or

23 suspended under the policy on or after January 1,2007. Further, members of the Settlement Class

24 whose benefits were suspended or denied between January 1,2000 and December 31,2006, will

25 have a notice sent to them advising them of SSA's revised policy so that these class members can

26 pursue prospective relief as if they had filed on April 1,2009. Moreover, except for those with

27 warrants issued under one of the three NCIC codes referred to above, SSA will no longer seek to

28 collect overpayments from any members of the class, if their benefits were suspended or denied

8396393.1

- 1-

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETTLEMENT, CLASS CERT., & ApPT. OF COVNSEL; MEMO. OF PS&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page10 of 24

1 on or after January 1,2000. That is, pursuant to the implementation plan described below, and in

2 a revision of its former practice, SSA will no longer seek to recoup benefits that were previously

3 paid during periods when a beneficiary's warrant was outstanding.

4

The proposed Stipulation of Settlement represents a fair, adequate, and reasonable

5 compromise of claims. Plaintiffs request that the Court: (1) certify a Settlement Class pursuant

6 to Rules 23(a), 23(b)(2), and 23(c)(1); (2) appoint Plaintiffs' counsel as Class Counsel for the

7 Settlement Class pursuant to Rules 23(g) and 23(c)(1); (3) preliminarily approve the Stipulation

8 of Settlement pursuant to Rule 23(e); (4) approve the proposed notice to the class; and (5) in

9 accord with the Court's order at the case management conference held July 7,2009, set a final

10 approval hearing for Thursday, September 24, 2009, at 2:00 p.m. to consider the fairness of the

11 proposed Stipulation of Settlement, with any objections filed not later than September 10, 2009.

12 II. BACKGROUND

13

A. Nature of the Claims

14

Federal law makes ineligible for OASDI, SVB, or SSI benefits (or for service as

15 representative payees under these programs) all persons who are "fleeing to avoid prosecution, or

16 custody or confinement after conviction," for a felony. 42 U.S.c. §§ 402(x)(1)(A)(iv) (OASDI),

17 1004(a)(2) (SVB), 1382(e)(4)(A) (SSI). Pursuant to these statutes, SSA has implemented

18 regulations which state that SSA will deny or suspend benefits only where there is an order or

19 warrant that is issued "on the basis of an appropriate finding" that the individual in question "[i]s

20 fleeing, or has fled, to avoid prosecution" or "is fleeing, or has fled to avoid, custody or

21 confinement after conviction" for a felony. 20 C.F.R. § 416.1339(b); id. § 408.810(b).

22

In its administration of these Federal Benefits Programs, SSA established a policy, set

23 forth in the agency's Program Operations Manual System ("POMS"), under which the agency

24 instructed its personnel to deny and suspend benefits, and to deny certification or decertify

25 representative payees, on the ground that an applicant, beneficiary, or representative payee was

26 the subject of an outstanding felony warrant-even if the applicant, beneficiary, or representative

27 payee did not know of the warrant or the charges from which the agency deemed the individual to

28 be fleeing.
8396393.1

- 2-

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTLEMENT, CLASS CERT., & ApPT. OF COUNSEL; MEMO. OF PS&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page11 of 24

1

Prior to the filing of this action, numerous federal courts had previously addressed the

2 policy in the context of individual appeals and had consistently ruled against the agency. See,

3 e.g., Fowlkes v. Adamec, 432 F.3d 90,96-97 (2d Cir. 2005); Reffv. Astrue, 2008 WL 4277713

4 (D. Minn. Sept. 15,2008); Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July 10,2008);

5 Blakely v. Comm'rSoc. Sec., 330 F. Supp. 2d 910 (W.D. Mich. 2004); Hull v. Barnhart, 336 F.

6 Supp. 2d 1113 (D. Or. 2004); Thomas v. Barnhart, 2004 WL 1529280 (D. Me. June 24, 2004);

7 Garnes v. Barnhart, 352 F. Supp. 2d 1059 (N.D. Cal. 2004).

8

B. Procedural Background

9

On behalf of themselves and all other similarly situated individuals, Plaintiffs Rosa

10 Martinez and Jimmy Howard filed this action on October 15, 2008, alleging that SSA's policy

11 violated the Social Security Act and the agency's implementing regulations. Two days later,

12 Plaintiff Rosa Martinez filed a motion for a temporary restraining order, which Defendant

l3 opposed. That motion was withdrawn a few days later, after SSA agreed to resume paying

14 benefits to Ms. Martinez.

15

Plaintiffs filed a First Amended Class Action Complaint on December 12, 2008, adding

16 four additional named plaintiffs. On January 12 and January 15,2009, the parties filed a series of

17 substantive motions. Plaintiffs moved for class certification, for a preliminary injunction, and for

18 summary adjudication on the question of the legality of SSA's challenged policy. Defendant filed

19 two motions to dismiss, contending that Plaintiffs were required to exhaust their administrative

20 remedies and making various other jurisdictional arguments. Defendant also opposed the motion

21 for class certification, preliminary injunction, and summary adjudication on the primary ground

22 that SSA's policy was consistent with legislative history. While these motions were pending,

23 SSA returned some of the named Plaintiffs to pay status.

24

Prior to the completion of briefing on these motions, the parties entered into settlement

25 negotiations. After briefing was completed but prior to the scheduled hearing on the pending

26 motions, the parties participated in two lengthy settlement conferences before the Honorable

27 Magistrate Judge Edward M. Chen. Although these two sessions did not produce a complete

28 agreement, the parties made substantial progress toward a mutually acceptable resolution of the

8396393.1

-3 -

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETILEMENT, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF Ps&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page12 of 24

1 lawsuit and thereafter continued to engage in settlement talks. On March 12,2009, the day of the

2 scheduled hearing on the pending motions, the parties reached agreement in principle on the

3 terms of a settlement, with the exception of the amount of fees to be paid to Plaintiffs' counsel.

4 Having agreed upon the elements of the substantive relief to be provided to the Settlement Class,

5 the parties requested, and the Court approved, a continuation of the hearing on the motions to

6 allow further negotiations. After agreeing on a fee amount, the essential elements of the parties'

7 agreement were included in a Memorandum of Understanding which was entered on the record

8 before Magistrate Judge Chen on March 30, 2009, and the parties withdrew their respective

9 motions. Subsequently, the parties resolved all remaining issues and memorialized their

10 agreement in the proposed Stipulation of Settlement, attached as Exhibit A to the Declaration of

11 Gerald A. McIntyre filed herewith.

12

c. The Stipulation of Settlement

13

The key features of the proposed Stipulation of Settlement are as follows. First, the

14 Stipulation of Settlement fundamentally changes the challenged SSA policy. Under the terms of

15 the StipUlation, effective April 1, 2009, SSA no longer suspends or denies OASDI, SSI, and SVB

16 benefits merely on the basis of an outstanding felony warrant and no longer refuses to certify an

17 individual as a representative payee solely on the basis of an outstanding felony warrant, although

18 it may use warrant information in determining an individual's suitability to serve as a

19 representative payee. 1 Instead, SSA has agreed that it will deny or suspend benefits, or deny or

20 suspend status as a representative payee, only when the applicant, beneficiary, or representative

21 payee has been charged with an offense that falls under one of three designated NCIC Codes:

22 "escape" (4901); "flight to avoid" (prosecution, confinement, etc.) (4902); and "flight-escape"

23 (4999). See Stipulation of Settlement, art. I. Out of more than 424 types of warrants listed by the

24 NCIC, the parties specifically negotiated these codes, which constitute a small fraction of all

25
26 1 See also Social Security Administration, EM-09025, available at
https:llsecure.ssa.gov/apps I0/public/reference.nsf/8b709aba3e20aOdd852574da00547b45124d88ce410 I38ee3852575
27 8a003ed32l!OpenDocument (April 1,2009) (beneficiaries); Social Security Administration, EM-09024, available at
https:llsecure.ssa.gov/apps 10/public/reference.nsf/8b709aba3e20aOdd85 2574da00547b45/b3d2f7cOa 1a2ae2b8525 75
28 8b0069clec!OpenDocument (April 1,2009) (representative payees).

8396393.1

-4 -

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETILEMEl\'T, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF PS&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page13 of 24

1 warrants issued. Further, the nature of the offenses captured by these three codes suggests that an

2 individual subject to a warrant bearing one of these codes has been the subject of a probable cause

3 finding that the person is "fleeing" to avoid prosecution, custody or confinement.

4

Second, with the exception of persons whose warrants fell within one of the three NCIC

5 classifications noted above, all otherwise eligible persons whose applications were denied or

6 whose benefits were suspended or who had an administrative appeal decision on the basis of an

7 outstanding felony arrest warrant on or after January 1,2007, as well as all persons with pending

8 administrative claims challenging any such suspension or denial as of August 11,2008 (the

9 "Post-2006 Class Members"), are entitled under the Stipulation of Settlement to have their

10 benefits reinstated and to receive full retroactive award of benefits for the period during which

11 SSA had denied or withheld benefits pursuant to the challenged policy. See Stipulation of

12 Settlement, art. II. SSA will provide individual notices to these persons advising them of their

13 eligibility for this relief. At this time, SSA' s preliminary estimate is that the group of Post-2006

14 Class Members includes approximately 80,000 individuals. McIntyre Decl. <J[<J[ 13-14. Further,

15 according to SSA, in January 2009 the average benefits payment received by retired workers

16 under Social Security was $1,153 per month; the average payment received by disabled workers

17 under Social Security was $1,064 per month; and the average Supplemental Security Income

18 payment received was $504.10 per month. See Social Security Administration, 2009 Social

19 Security Changes, available at http://www.ssa.gov/pressoffice/factsheets/colafacts2009.pdf (last

20 visited July 21,2009); Social Security Administration, SSI Federally Administered Payments,

21 available at http://www.ssa.gov/policy/docs/statcomps/ssi_monthlyI2009-05/table07.pdf (last

22 visited July 21,2009).

23

Third, again with the exception of persons whose warrants fell within one of the three

24 NCIC classifications noted above, individuals whose benefits were denied or suspended between

25 January 1,2000 and December 31,2006, and who are not members of the Post-2006 class (the

26 "Pre-2007 Class Members") will be sent individualized notices, mailed to the individuals' last

27 known address, advising of the changes made to SSA's policy and apprising these individuals of

28 their potential eligibility for prospective benefits. While Pre-2007 Class Members will not be

8396393.1

-5-

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETTLEMENT, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF PS&AS; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page14 of 24

1 entitled to an award of full retroactive benefits, those who are not already receiving benefits or

2 payments and who contact SSA within six months of the mailing of these notices will be assigned

3 a "protective filing date" of April 1,2009, entitling these individuals to benefits based on that

4 filing date, provided they establish their present eligibility for benefits. See Stipulation of

5 Settlement, art. III.

6

Fourth, with the exception of persons whose warrants fell within one of the three NCIC

7 classifications noted above, under the implementation plan SSA will not seek to collect

8 overpayments from anyone whose benefits were denied or suspended after January 1,2000, if

9 such overpayments were based on SSA's implementation of the challenged policy. Previously,

10 when SSA determined that a beneficiary had received payments under the Federal Benefits

11 Programs at a time when a felony warrant was outstanding for that person's arrest, SSA

12 considered those payments to be "overpayments" and billed the individual for the amount of

13 those benefits. If the warrant was cleared and the agency again deemed the person to be eligible,

14 the agency would withhold some or all of the person's ongoing benefits until it recovered the

15 "overpayment" of any benefits paid while a warrant was in existence. Under the terms of the

16 Stipulation of Settlement, SSA will cease to collect these overpayments altogether, providing a

17 large number of Settlement Class members with relief from a debt SSA has told them they owe.

18 See Stipulation of Settlement, §§ 2.2 & 3.2. At this time, SSA is unable to estimate how many

19 individuals in the Pre-2007 group are entitled to this relief.

20

In addition to these key terms, the Stipulation of Settlement also provides for publication

21 of its terms on the website of the Social Security Administration and in the Federal Register. See

22 Stipulation of Settlement, art. IV. Further, SSA has developed an implementation plan setting

23 forth anticipated timeframes for providing agreed-upon relief to the Settlement Class and will

24 notify Class Counsel of the dates that it begins and substantially completes each phase. See

25 Stipulation of Settlement, art. V. Any significant adjustments to this implementation plan will

26 require SSA to notify Class Counsel and will be subject to dispute resolution procedures if

27 needed. Moreover, to protect the interests of the class, the Stipulation of Settlement contemplates

28 collaboration by Plaintiffs' Counsel in the implementation of the settlement, including the right to

8396393.1

- 6-

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETILEMENT, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF PS&AS;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page15 of 24

1 review and comment within two days on notices and transmissions from SSA to agency

2 employees regarding the revised policy and the implementation of the settlement and on notices

3 to class members. It also provides for the continuing jurisdiction of this Court to enforce the

4 terms of the Stipulation of Settlement, modify it if jointly requested by the parties, and enter any

5 order authorized by it. See Stipulation of Settlement, arts. IX & X. Finally, the Stipulation

6 provides for an award of attorneys' fees and costs in the amount of $483,000 to Class Counsel.

7 This amount reflects the substantial amount of work Class Counsel has already performed in

8 briefing the case and reaching out to prospective members of the Settlement Class, and is

9 considerably less than the reasonable fees and costs that Plaintiffs would otherwise be entitled to

10 seek from the Court. See McIntyre Decl. <)[<)[ 9, 11.

11

D. SSA's Implementation and Expected Timeframes

12

Immediately upon the parties' tentative settlement, SSA issued instructions revising its

13 policy and procedures on paying beneficiaries with outstanding felony warrant records and

14 selecting representative payees with such records, as described in greater detail below. SSA also

15 began comprehensive efforts preparing for implementation of the settlement by developing

16 business plans, writing and testing systems codes and protocols, and drafting various materials for

17 providing notice to class members. On June 12,2009, SSA provided plaintiffs its implementation

18 plan as required by Article V of the settlement, and plaintiffs have accepted the plan after

19 discussing it with SSA. The significant efforts on implementation, the salient terms of which are

20 described below, will continue until the SSA fulfills its obligations under the settlement.

21

1. Policy Change

22

On April 1, 2009, SSA announced the new fugitive felon policy resulting from this

23 settlement in Emergency Message (EM) 09025, attached as Exhibit C to the Settlement

24 Agreement. See McIntyre Decl. Exh. 1. Prior to its public release, Plaintiffs' counsel reviewed

25 EM 09025, as provided in the March 30, 2009 terms of settlement. The policy became effective

26 the same day and is publicly available on SSA's website, www.socialsecurity.gov.

27

The EM 09025 provides that only three National Crime Information Center (NCIC) felony

28 offense codes will be used to prohibit payment and not to select representative payees under the

8396393.1

-7 -

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTLEMENT,
CLASS CERT., & ApPT. OF COUNSEL; MEMO. OF PS&AS; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page16 of 24

1 felony non-payment and non-selection provisions of Titles II, VIII, and XVI of the Social

2 Security Act. SSA may continue to consider all warrant information in determining an

3 individual's suitability to serve as a representative payee.

4

SSA used the emergency message format as an immediate means to disseminate and make

5 public the new policy. Upon finalization of the settlement, the agency anticipates incorporating

6 the policy in EM 09025 in a section of its Program Operations Manual System ("POMS").

7 POMS provides the operational and policy guidance for agency field personnel, and portions of

8 the POMS are available on SSA's website and published on Westlaw.

9

2. Provision of Retroactive Relief

10

Pursuant to the settlement terms, on June 12,2009, SSA provided Plaintiffs with an

11 Implementation Plan for the elements of the settlement, including the provisions for retroactive

12 relief to the Post-2006 Class Members and Pre-2007 Class Members. McIntyre Decl. <JI 5. The

13 agency has already begun preparatory work on effectuating this relief. [d. <JI 6. The

14 implementation plan included the agency's current assessment of the anticipated timeframes for

15 the public aspects of implementation. [d. <JI 5. To make this assessment, SSA's systems,

16 operations, and policy components had to carefully sequence and stage the relief provided to the

17 Post-2006 Class Members, further sequence this relief with respect to the Title II, Title VIII and

18 Title XVI programs, and plan the relief for the Pre-2007 Class Members. [d. <JI 6. SSA and

19 Plaintiffs' counsel discussed the sequencing of relief in detail. [d. Following systems validation

20 procedures, SSA plans to identify class members and then:

21

(a) begin notifying post-2006 Title II class members and reinstating their benefits in

22

the fourth quarter of 2009;

23

(b) begin notifying post-2006 Title XVI and Title VIII class members and begin

24

redetermining their non-medical eligibility and, as appropriate, reinstating their

25

payments in the second quarter of 2010;

26

(c) begin reopening Title XVI claims denied after 2006 and reassessing non-medical

27

eligibility and, in cases where a determination has not already been made,

28
8396393.1

determining medical eligibility, in the second quarter of 2010;

-8-

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETILEMENI. CLASS CERT.• & ApPT. OF COUNSEL; MEMO. OF PS&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page17 of 24

1

(d) begin notifying pre-2007 class members, providing overpayment relief, and

2

affording protective filing dates to timely responders in the second quarter of 2010,

3 Id. <J[ 7. The Implementation Plan advises that the timeframes are contingent on several factors,

4 including, but not limited to, successful systems design, development, testing, and validation

5 activities, as well as the anticipated availability of resources planned for the Martinez Settlement

6 initiative. Id. <J[ 8. The timeframes also depend on the number of cases in which SSA determines

7 that relief cannot be automated and must be manually handled. Id. In addition, the currently

8 articulated timeframes are contingent on currently known facts and anticipated circumstances. Id.

9 Therefore, changes in facts or circumstances, including changes in the preliminary or final

10 approval hearing date or the effective date of the settlement, could affect the phases of the

11 settlement and the final effectuation. Id.

12 III. CERTIFICATION OF THE SETTLEMENT CLASS IS APPROPRIATE UNDER

RULE 23(A) AND RULE 23(B)(2).

13
A. The Settlement Class Meets the Numerosity, Commonality, Typicality, and

14

Adequacy Requirements Set Forth in Rule 23(a).

15

Federal Rule of Civil Procedure 23(a) mandates that, as to any class that would be

16 certified, (1) the number of persons must be so numerous that joinder of all individual class

17 members as parties would be impracticable; (2) there must be questions of law or fact common to

18 the class members; (3) the claims of the proposed named plaintiffs must be typical of those of the

19 class; and (4) the named plaintiffs and their counsel must fairly and adequately protect the

20 interests of the class. Fed. R. Civ. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613

21 (1997). The proposed Settlement Class meets all of these requirements.

22

1. Numerosity. The vast number of beneficiaries and representative payees affected by

23 SSA's policy makes joinder of all Settlement Class members' individual claims impracticable.

24 SSA estimates that the proposed class would encompass tens of thousands of people. Although

25 the exact number of Settlement Class members has not been calculated, class treatment is

26 appropriate given the vast number of plaintiffs in the proposed class. Gen. Tel. Co. of the Nw.,

27 Inc. v. EEOC, 446 U.S. 318,330 (1980); Celano v. Marriott Int'l, Inc., 242 F.R.D. 544,549

28 (N.D. Cal. 2007); Moeller v. Taco Bell Corp., 220 F.R.D. 604,608 (N.D. Cal. 2004) (citing 1

8396393.1

-9 -

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTLEMENT, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF PS&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page18 of 24

1 Newberg on Class Actions § 3:6 (4th ed. 2002».

2

2. Commonality. Common questions of both law and fact are presented by the claims of

3 members of the proposed class. The commonality requirement of Rule 23(a) has been "construed

4 permissively" in analogous contexts, Staton v. Boeing Co., 327 F.3d 938,953 (9th Cir. 2003), and

5 is satisfied here. The common questions relate to, among other issues: the operation and legality

6 of SSA's challenged policy; the reasonableness of SSA's interpretations of governing federal

7 statutes; and the ability of class members to obtain a retroactive award of benefits previously

8 denied or suspended. Because the relief obtained by the Settlement Class does not depend on the

9 facts of any individual case or the propriety of any plaintiff-specific factual determinations (such

10 as the individual's disability status), the questions posed by the claims of the proposed class

11 representatives are common to those of other members of the Settlement Class.

12

The eligibility of individual members of the proposed class for benefits under the Federal

13 Benefits Programs depends on their unique circumstances, but those individual questions do not

14 prevent certification of a class in this case because this case challenges a policy that has been

15 applied uniformly to all members of the class. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019

16 (9th Cir. 1998); Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir. 1998); Celano v. Marriott Int'l,

17 Inc., 242 F.R.D. 544,549 (N.D. Cal. 2007); see also Forbush v. J.e. Penney Co., Inc., 994 F.2d

18 1101, 1106 (5th Cir. 1993) (existence of subsequent individual administrative proceedings "does

19 not supply a basis for concluding that [a proposed class] has not met the commonality

20 requirement").

21

3. Typicality. The claims of Plaintiffs Rosa Martinez, Jimmy Howard, Roberta Dobbs,

22 Brent Roderick, Sharon Rozier, and Joseph Sutrynowicz are typical of the claims of the proposed

23 Settlement Class. "Under the rule's permissive standards, representative claims are 'typical' if

24 they are reasonably co-extensive with those of absent class members; they need not be

25 substantially identical." Hanlon, 150 F.3d at 1020. In this case, the named plaintiffs and all

26 members of the proposed Settlement Class have had (or face the threat of having) their benefits

27 denied or suspended based on the same unlawful policy. They have identical claims for

28 declaratory and injunctive relief and an identical interest in enforcing the plain language of the

8396393.1

- 10-

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETTLEMENT. CLASS CERT.• & APPT. OF COUNSEL; MEMO. OF Ps&AS; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page19 of 24

1 statutes and implementing regulations. For these reasons, the claims of the named plaintiffs

2 should be considered typical of those of the members of the proposed Settlement Class.

3

4. Adequacy. The representative plaintiffs are adequate to protect the interests of the

4 proposed Settlement Class. In particular, the interests of the named plaintiffs are consonant with,

5 and not antagonistic to, the interests of the Settlement Class. The procurement of relief for the

6 named plaintiffs in no way undermines or jeopardizes the availability of relief to others who have

7 been affected by SSA's policy. Under such circumstances, the individual plaintiffs are capable of

8 adequately protecting the interests of the class. Dukes v. Wal-Mart, Inc., 509 F.3d 1168,1177

9 (9th Cir. 2007); Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1238-39 (9th Cir. 1998);

10 Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507,512 (9th Cir. 1978).

11

B. The Settlement Class Should Be Certified Pursuant to Rule 23(b)(2) Because

SSA's Challenged Policy Applies Generally to the Class.

12

Certification of a class is appropriate where a defendant "has acted or refused to act on

13

grounds that apply generally to the class, so that final injunctive relief or corresponding

14

declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Here,

15

Plaintiffs have complained of conduct that generally affects and is applicable to the class as a

16

whole-namely, SSA's policy of denying or suspending benefits, or decertifying or denying

17

certification for representative payees, under the same challenged policy. Indeed, this case is

18

similar to, and for purposes of Rule 23(b)(2) indistinguishable from, numerous other cases in

19

which aggrieved claimants have challenged generally the application of a particular government

20

policy. See, e.g., Walters, 145 F.3d at 1047 Califano v. Yamasaki, 442 U.S. 682, 701 (1979); see

21

also 7AA Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and

22

Procedure § 1775, at 73 (3d ed. 2005) (noting that Rule 23(b)(2) "has been used extensively to

23

challenge the enforcement and application of complex statutory schemes, such as suits involving

24

the award or termination of benefits under the Social Security Act." (emphasis added)).

25

IV. APPOINTMENT OF PLAINTIFFS' COUNSEL AS CLASS COUNSEL IS

26

APPROPRIATE UNDER RULE 23(g).

27

Plaintiffs counsel, a group of experienced and capable attorneys, include attorneys at four

28 non-profit organizations-the National Senior Citizens Law Center ("NSCLC"), the Urban

8396393.1

- 11 -

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETTLEMENT, CLASS CERT., & ApPr. OF COUNSEL; MEMO. OF PS&AS; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page20 of 24

1 Justice Center, Disability Rights California, and the Legal Aid Society of San Mateo County-

2 whose missions each and collectively include the representation and advancement of the interests 3 of individuals within the proposed Settlement Class.2 Further, Plaintiffs' counsel Gerald

4 McIntyre, of NSCLC, has previously and successfully argued a case before the Second Circuit

5 Court of Appeal presenting many of the issues raised in this litigation. See Fowlkes v. Adamec,

6 432 F.3d 90, 91 (2d Cir. 2005) (listing Mr. McIntyre as plaintiff's lead counsel). Finally,

7 Plaintiffs' counsel include attorneys from the nationally recognized law firm, Munger, Tolles &

8 Olson LLP, which has demonstrated its commitment in this case to provide the resources

9 necessary to litigate the issues presented in this matter and whose attorneys have extensive

10 litigation experience. See Drew Combs, A Firm ofEquals, The American Lawyer, July 2008

11 (ranking MTO first in the 2008 version of its "annual A-List of the nation's elite firms"); Andrea

12 Chang, L.A. Law Firm Judged No.1, L.A. Times, July 8,2008. The attorneys representing the

13 proposed Settlement Class have expertise in disability rights, public-benefits law, senior-citizen

14 law and class-action litigation, and they have demonstrated that they possess the necessary

15 resources and commitment to pursue vigorously the interests of the proposed Settlement Class.

16 For these reasons, they should be appointed as Class Counsel to the Settlement Class.

17 V. APPROVAL OF THE PARTIES' PROPOSED SETTLEMENT AGREEMENT IS APPROPRIATE UNDER RULE 23(e).
18 Federal Rule of Civil Procedure 23(e) requires this Court to determine whether a proposed
19 class settlement is fundamentally fair, adequate, and reasonable to the plaintiff beneficiaries.
20 "Assessing a settlement proposal requires the district court to balance a number of factors: the
21 strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further
22 litigation; the risk of maintaining class action status throughout the trial; the amount offered in
23 settlement; the extent of discovery completed and the stage of the proceedings; the experience
24 and views of counsel; the presence of a governmental participant; and the reaction of the class
25

26
2 See, e.g., National Senior Citizens Law Center http://www.nsc1c.orglNSCLC/about-us/whoweare; Urban Justice
27 Center, http://www.urbanjustice.orglujc/about!hub.html?id=cZtvmZBP; Disability Rights California,
http://www.disabilityrightsca.orglaboutlindex.htm; Legal Aid Society of San Mateo County,
28 http://www.legalaidsmc.orglabout.htm; Munger Tolles & Olson, http://www.mto.comlaboutl.

8396393.1

- 12 -

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTLEMENT, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF Ps&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page21 of 24

1 members to the proposed settlement." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.

2 1998). Such a comprehensive assessment of the fairness and adequacy of a proposed settlement

3 is "committed to the sound discretion of the trial judge." [d. In reviewing a proposed resolution,

4 the court also considers "the strong judicial policy that favors settlements, particularly where

5 complex class action litigation is concerned." Class Plaintiffs v. City of Seattle, 955 F.2d 1268,

6 1276 (9th Cir. 1992).

7

Here, the parties' proposed Stipulation of Settlement should be preliminarily approved.

8 As described above, the Stipulation of Settlement effects a major change in SSA policy. The

9 agreement assures that SSA will no longer deny or suspend benefits unless the warrant in

10 question falls into one of three categories, such that the nature of the offense for which the

11 warrant has been issued suggests that a probable cause finding has been made that the individual

12 is "fleeing" to avoid prosecution, custody or confinement. This is a narrow subset of warrants,

13 specifically negotiated by the parties, covering only 3 of 424 types of warrants categorized by the

14 NCIC. Furthermore, the Stipulation of Settlement provides substantial economic benefits to the

15 Settlement Class. Those members of the proposed Settlement Class whose benefits have been

16 denied or suspended since January 1, 2007 are eligible for retroactive benefits that may, in some

17 instances, amount to tens of thousands of dollars. Any member whose benefits were denied or

18 suspended between January 1,2000 and December 31,2006 will have any "overpayments"

19 attributable to the policy eliminated under the implementation plan-a benefit that may be worth

20 thousands or tens of thousands of dollars to some members of the proposed Settlement Class.

21 Perhaps most significantly, all members of the proposed class (except those with an unsatisfied

22 "flight" or "escape" warrant) will have the opportunity to obtain benefits going forward without

23 the impediment of the challenged policy.

24

Although the action has not proceeded to an advanced stage, settlement at this juncture is

25 in the interests of class members. Given that the Federal Benefits Programs provide the primary

26 or sole source of income for the overwhelming majority of the class, the prompt resolution of this

27 action and renewed access to program benefits is of vital importance. Because this action

28 challenges a publicly-disclosed policy, discovery is not relevant to many of the key issues in the

8396393.1

- 13 -

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETILEMENT, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF Ps&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page22 of 24

1 case. Moreover, a resolution at this early stage provides much-needed relief to members of the

2 proposed Settlement Class, some of which has already been preliminarily provided by SSA. The

3 policy changes encompassed in the proposed settlement are very similar to, if not precisely the

4 same as, the prospective relief that Plaintiffs could have obtained if they had prevailed outright in

5 further litigation.

6

The Stipulation of Settlement also provides meaningful retroactive relief, including full

7 reinstatement of retroactive benefits for some. Claims under the Social Security Act are subject

8 to a 60-day statute of limitations. 42 U.S.c. § 405(g). While Plaintiffs believe that the statute

9 would be tolled under the circumstances of this case, litigating the issue of retrospective relief

10 would subject the Settlement Class to the delay and risk of additional and complex litigation. In

11 the views of the experienced attorneys who represent the Plaintiffs, the terms of the Stipulation of

12 Settlement-which provide full retroactive relief for persons whose benefits were denied or

13 suspended during a period of more than 20 months prior to the filing of this action (and partial

14 retroactive relief for persons denied or suspended during a period of more than eight years prior

15 to the filing of the action)-represent a fair and reasonable settlement.

16

Finally, it is noteworthy that the central terms of the Stipulation of Settlement are the

17 result of arm's-length negotiations mediated by a magistrate judge. The fact that a federal agency

18 has participated and agreed upon the terms of this Stipulation of Settlement provides another

19 reason to conclude that it constitutes an adequate settlement for the class, rather than the sort of

20 collusive class settlement that Rule 23(e) is designed to prevent. Churchill Village, LLC v. Gen.

21 Elec. Co., 361 F.3d 566,577 (9th Cir. 2004); City of Seattle, 955 F.2d at 1276.

22 VI. NOTICE TO SETTLEMENT CLASS

23

If the Court preliminarily approves the Stipulation of Settlement, Rule 23(e) of the Federal

24 Rules of Civil Procedure requires that "practicable" notice of any proposed class action settlement

25 be provided in a manner that is "reasonably calculated, under all the circumstances, to apprise

26 interested parties of the pendency of the action and afford them an opportunity to present their

27 objections." Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994) (quoting Mullane v. Cent.

28 Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950». The Court has wide discretion to

8396393.1

- 14 -

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETfLEMENT, CLASS CERT., & APPr. OF COUNSEL; MEMO. OF Ps&AS; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page23 of 24

1 determine the particular form of notice to be provided, but generally such notice should set forth:

2 (1) a summary of the proposed settlement agreement or a copy of the agreement; (2) the time,

3 date and place of the fairness hearing; and (3) the procedure by which objections to the settlement

4 may be made. See Manual for Complex Litigation, Third, § 30.41 at 236-38 (1997). Actual

5 individualized notice is not required, especially where, as here, the Court's approval of the

6 settlement under Rule 23(e) ensures the adequacy of representation, and the class is certified

7 under Rule 23(b)(2). Fontana v. Elrod, 826 F.2d 729, 732 (7th Cir. 1987) (quoting 7B Charles

8 Wright et aI., Federal Practice and Procedure § 1789, at 253 (2d ed. 1986)); Kincade v. Gen. Tire

9 & Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981).

10

Here, SSA would post a notice on its website. See McIntyre Decl. Exh. 2. Class Counsel

11 would post the notice on their respective websites and would provide the notice to national

12 organizations that represent members of the Settlement Class, including the ABA Commission on

13 Law and Aging; AARP; Bazelon Center for Mental Health Law; Brennan Center for Justice;

14 Center on HIV Law and Policy; Legal Action Center; Consortium for Citizens with Disabilities;

15 National Academy of Elder Law Attorneys; National Alliance on Mental Illness; National

16 Disability Rights Network; National Coalition for the Homeless; National Law Center on

17 Homelessness and Poverty; National Organization of Social Security Claimants' Representatives;

18 National Policy and Advocacy Council on Homelessness; Philippine Veterans Affairs Office

19 (Quezon City); and Sargent Shriver National Center on Poverty Law. Class counsel would also

20 request each of these national organizations to distribute the notice to any constituent

21 organizations or affiliates. See [PROPOSED] Order Granting Plaintiffs' Motion for Preliminary

22 Approval of Class Action Settlement, Class Certification, and Appointment of Class Counsel, and

23 Directing Class Notice and Setting Final Fairness Hearing. Such notice is reasonably calculated,

24 in light of the characteristics of the Settlement Class, to provide notice and effective explanation

25 to parties affected by the proposed settlement, regarding their rights and benefits under the

26 proposed settlement agreement.

27

Pursuant to the Court's order at the case management conference held on July 7,2009, a

28 final approval hearing set for Thursday, September 24,2009, at 2:00 p.m. will provide the Court

8396393.1

- 15 -

NOT. OF MOT. & MOT. FOR PRELIM. APP. OF SETTLEMENT, CLASS CERT., & ApPT. OF COUNSEL; MEMO. OF PS&As; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document142 Filed07/21/09 Page24 of 24

1 with additional opportunity to review the merits of the settlement agreement and to consider any

2 objections or other comments received from members of the Settlement Class, which will be filed

3 not later than Thursday, September 10, 2009.

4 VII. CONCLUSION

5

For the reasons set forth above, therefore, Plaintiffs request that the Court issue the

6 proposed order, filed herewith, which shall:

7

(1) certify the Settlement Class, defined above, pursuant to Rules 23(b)(2) and 23(c)(1);

8

(2) appoint Plaintiffs' counsel as counsel for the Settlement Class pursuant to Rules 23(g)

9

and 23(c)(1);

10

(3) preliminarily approve the Stipulation of Settlement pursuant to Rule 23(e);

11

(4) approve and direct notice to the class; and

12

(5) schedule a fairness hearing on Thursday, September 24,2009, at 2:00 p.m. for final

13

approval of the Stipulation of Settlement.

14

15 DATED: July 21,2009
16

MUNGER, TOLLES & OLSON LLP Attorneys for Plaintiffs

17

18

By:_ _ _ _ _.:...:/s::../..:::..M.::..a::.:;r..:::..k:...:R:...::.~C=_O.:...:f...:..:lr..:::..a:...::d~_ _ _ __

MARK R. CONRAD 19

20

21

22

23

24

25

26

27

28
8396393.1

- 16-

NOT. OF MOT. & MOT. FOR PRELIM. ApP. OF SETILEMENT, CLASS CERT., & APPT. OF COUNSEL; MEMO. OF Ps&As; CASE No. 08-CV-4735 CW

 
 Case4:08-cv-04735-CW Document143 Filed07/21/09 Page1 of 7

1 DAVID H. FRY (SBN 189276)
David.Fry@mto.com 2 MARK R. CONRAD (SBN 255667)
Mark. Conrad@mto.com 3 JEREMY S. KROGER (SBN 258956)
Jeremy.Kroger@mto.com 4 MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor
5 San Francisco, CA 94105-2907 T: (415) 512-4000/ F: (415) 512-4077
6 GERALD A. McINTYRE (SBN 181746)
7 gmcintyre@nsclc.org NATIONAL SENIOR CITIZENS LAW CENTER
8 3435 Wilshire Blvd., Suite 2860 Los Angeles, CA 90010-1938
9 T: (213) 674-2900/ F: (213) 639-0934

10 ANNA RICH (SBN 230195)
arich@nsclc.org 11 KEVIN PRINDIVILLE (SBN 235835)
kprindiville@nsclc.org 12 NATIONAL SENIOR CITIZENS LAW CENTER
1330 Broadway, Suite 525 13 Oakland, CA 94612
T: (510) 663-1055 / F: (510) 663-1051 14 Attorneys for Plaintiffs

15 ADDITIONAL COUNSEL LISTED ON NEXT PAGE

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO DIVISION

20 ROSA MARTINEZ, JIMMY HOWARD, ROBERTA DOBBS, BRENT
21 RODERICK, SHARON ROZIER, and JOSEPH SUTRYNOWICZ, on behalf of
22 themselves and all others similarly situated,

23

Plaintiffs,

24

vs.

25 MICHAEL J. ASTRUE, Commissioner of Social Security, in his official capacity,
26 Defendant.
27

CASE NO. 08-CV-4735 CW
DECLARATION OF GERALD A. McINTYRE IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CLASS CERTIFICATION, AND APPOINTMENT OF CLASS COUNSEL, AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING

28
8396139.1

McINTYRE DECL. ISO PLAINTIFFS' MOTION FOR PRELIM INARY ApPROVAL OF CLASS SETTLEMENT;
CASE No. 08-CY-4735 CW

Case4:08-cv-04735-CW Document143 Filed07/21/09 Page2 of 7

1 EMILIA SICILIA esicilia@urbanjustice.org
2 JENNIFER PARISH jparish@urbanjustice.org
3 URBAN JUSTICE CENTER 123 William Street, 16th FI.
4 New York, NY 10038 T: (646) 602-5668 IF: (212) 533-4598
5 CHRISTOPHER A. DOUGLAS (SBN 239556)
6 cdouglas@legalaidsmc.org M. STACEY HAWVER (SBN 146012)
7 mshawver@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
8 521 East 5th Avenue San Mateo, CA 94402
9 T: (650) 558-0915 IF: (650) 558-0673
10 MARILYN HOLLE (SBN 61530) maril yn.holle@disabilityrightsca.org
11 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd. Suite 902
12 Los Angeles, CA 90010-2522 T: (213) 427-8747 IF: (213) 427-8767
13
14 Of Counsel for Plaintiffs ROSA MARTINEZ, JIMMY HOWARD, ROBERTA DOBBS, BRENT
15 RODERICK, SHARON ROZIER, JOSEPH SUTRYNOWICZ, and all others similarly situated
16
17
18
19
20
21
22
23
24
25
26
27
28
8396139.1

McINTYRE DECL.ISO PLAINTIFFS' MOTION FOR
PRELIMINARY ApPROVAL OF CLASS SETTLEMENT;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143 Filed07/21/09 Page3 of 7

1 I, Gerald A. McIntyre, declare as follows:

2

1. I am a Directing Attorney employed by the National Senior Citizens Law

3 Center in Los Angeles. Along with the law firm of Munger, Tolles & Olson LLP, the Urban

4 Justice Center, the Legal Aid Society of San Mateo County, and Disability Rights California, the

5 National Senior Citizens Law Center is counsel for Plaintiffs Rosa Martinez, Jimmy Howard,

6 Roberta Dobbs, Brent Roderick, Sharon Rozier, and Joseph Sutrynowicz in this action

7 (collectively, "Class Counsel"). I submit this declaration in support of Plaintiffs' Notice of

8 Motion and Motion for Preliminary Approval of Class Action Settlement, Class Certification,

9 and Appointment of Counsel, and Directing Class Notice and Setting Final Fairness Hearing. I

10 make this declaration based upon personal knowledge and, if called as a witness, could and

11 would testify competently to the matters set forth herein.

12

2. The Parties in the above-captioned case have reached agreement on the

13 terms of a settlement in the above-captioned case ("Stipulation of Settlement"), which is attached

14 hereto as Exhibit 1.

15

3. The Parties in the above-captioned case have further reached agreement on

16 the form of notice regarding the Stipulation of Settlement to be provided to class members

17 pursuant to Federal Rule of Civil Procedure 23(e) ("Notice of Class Settlement"), which is

18 attached hereto as Exhibit 2.

19

4. The Parties in the above-captioned case have also discussed at length an

20 appropriate timetable for the implementation of the Stipulation of Settlement by the Social

21 Security Administration ("Implementation Plan").

22

5. On June 12,2009, SSA provided Plaintiffs an Implementation Plan

23 containing a timetable for the provision of retroactive relief to the Post-2006 Class Members and

24 Pre-2007 Class Members. This Implementation Plan included the agency's current assessment

25 of the anticipated timeframes for the public aspects of implementation.

26

6. In connection with this Implementation Plan, SSA represented to

27 Plaintiffs' counsel that the agency has started preparatory work to put this plan into place. SSA

28 further represented that the Implementation Plan requires careful coordination between SSA's

8396139.1

McINTYRE DECL. ISO PLAINTIFFS' MOTION FOR

-1

PRELIMINARY ApPROVAL OF CLASS SETTLEMENT;

CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143 Filed07/21/09 Page4 of 7

1 systems, operations, and policy components, including carefully sequencing and staging of the

2 relief provided to the Post-2006 Class Members; further sequencing of relief with respect to the

3 Title II, Title VIII and Title XVI programs; and planning for the relief for the Pre-2007 Class

4 Members. Plaintiffs' counsel discussed in detail the sequencing of relief provided under the

5 Implementation Plan.

6

7. Under the Implementation Plan provided by the agency, SSA represented

7 that, following validation of its procedures, SSA plans to identify all class members and provide

8 relief according to the following schedule:

9

(a) begin notifying post-2006 Title II class members and reinstating their benefits,

10

beginning in the fourth quarter of2009 and ending in the second quarter of201O;

11

(b) begin notifying post-2006 Title XVI and Title VIII class members and begin

12

redetermining their non-medical eligibility and, as appropriate, reinstating their

13

payments beginning in the second quarter of2010 and ending in the fourth quarter

14

of2010;

15

(c) begin reopening Title XVI claims denied after 2006 and reassessing non-medical

16

eligibility and, in cases where a determination has not already been made,

17

reassessing medical eligibility, beginning in the second quarter of 20 10 and ending

18

in the fourth quarter of 2010;

19

(d) begin notifying pre-2007 class members, providing overpayment relief, and

20

affording protective filing dates to timely responders, beginning in the second

21

quarter of2010 and ending in the fourth quarter of201O.

22

8. In connection with the agency's proposed Implementation Plan, SSA

23 advised Plaintiffs' counsel that it considers the timeframes set forth in the Implementation Plan

24 contingent on several factors, including, but not limited to, successful systems design,

25 development, testing, and validation activities, as well as the anticipated availability of resources

26 planned for the Martinez Settlement initiative. SSA also advised Plaintiffs' counsel that the

27 timeframes depend on the number of cases in which SSA determines that relief cannot be

28 automated and must be manually handled. SSA further advised Plaintiffs' counsel that changes

8396139.1

- 2-

McINTYRE DECL. ISO PLAINTIFFS' MOTION FOR PRELIMINARY ApPROYAL OF CLASS SETTLEMENT;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143 Filed07/21/09 Page5 of 7

1 in certain facts or circumstances, including changes in the preliminary or final approval hearing

2 date or the effective date of the settlement, could affect the phases of the settlement and the final

3 effectuation.

4

9. Class counsel spent significant time investigating Plaintiffs' claims and

5 researching the statutes, regulations, and internal policies of the Social Security Administration

6 with respect to the Old Age, Survivors, and Disability Insurance ("OASDI"), Supplemental

7 Security Income ("SSI"), and Special Veterans Benefits ("SVB") programs, see 42 U.S.c.

8 §§ 402(x)(1)(A)(iv) (OASDI), 1004(a)(2) (SVB), 1382(e)(4)(A) (SSI); see also 20 C.F.R. §

9 416.1339(b); id § 408.81O(b). Class counsel also spent significant time briefing various motions

lOin this case, including two motions to dismiss filed by Defendant, as well as Plaintiffs' motions

11 for a temporary restraining order, for class certification, for a preliminary injunction, and for

12 summary judgment on the question of the legality of the SSA's challenged policy. Class

13 Counsel also spent significant time researching and briefing additional legal issues, including

14 those related to questions regarding the applicability of the statute of limitations, see 42 U.S.c. §

15 405(g), in connection with settlement conference statements.

16

10. The Stipulation of Settlement was reached after extensive arm's-length

17 negotiations between Class Counsel and Defendant. An informal settlement meeting was held

18 on February 3,2009. Two formal, full-day settlement conferences were held before the

19 Honorable Magistrate Judge Edward M. Chen on Friday, March 6, 2009, and Monday, March 9,

20 2009. Another informal telephonic settlement conference was held prior to a scheduled hearing

21 on pending motions in the above-captioned matter on Thursday, March 12, 2009. Additional

22 informal settlement conferences were held on Friday, June 5, 2009; Tuesday, July 7, 2009; and

23 Tuesday, July 14, 2009. I attended each of these settlement conferences.

24

11. Class Counsel collectively spent more than 2,100 hours of work on this

25 case. Even more hours were spent learning about the problems faced by individuals affected by

26 the challenged Social Security Administration policies and conducting outreach to organizations

27 that serve these individuals.

28
8396139.1

-3 -

McINTYRE DECL. ISO PLAINTIFFS' MOTION FOR PRELIMINARY ApPROVAL OF CLASS SETTLEMENT;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143 Filed07/21/09 Page6 of 7

1

12. These motions, preliminary proceedings, and settlement conferences

2 provided Class Counsel with the information needed to evaluate the strength of Plaintiffs' claims

3 and the value to the Class of the terms of the StipUlation of Settlement. Although Class Counsel

4 believes that additional discovery-including depositions and the production by Defendant of

5 many thousands of pages of documents-would be necessary if the case were to proceed to trial,

6 Class Counsel believes that it is in possession of sufficient information to make an informed and

7 comprehensive evaluation of the proposed Stipulation of Settlement.

8

13. The Social Security Administration has informed Class Counsel that,

9 according to their preliminary estimates, approximately 80,000 people are included in the post-

10 2006 class. All of these people will be entitled to full retroactive relief and ongoing benefits if

11 they are otherwise eligible. The retroactive relief alone will, in many instances, amount to tens

12 of thousands of dollars for an individual in this group. Also, the pre-2007 class will receive

13 substantial relief in the form of notice, potential restoration of eligibility retroactive to April 1,

14 2009 and relief from future recovery of overpayments once the relief has been implemented.

15 This is in addition to the countless others who will benefit prospectively by the change in policy.

16

14. In the course of confidential settlement discussions, the Social Security

17 Administration provided Class Counsel with data sufficient to convince Class Counsel that the

18 settlement is fair, reasonable and adequate.

19 II

20 II

21 II

22 II

23 II

24 II

25 II

26 II

27 II

28 II
8396139,1

-4 -

McINTYRE DECL. ISO PLAINTIFFS' MOTION FOR
PRELIMINARY ApPROVAL OF CLASS SETTLEMENT;
CASE No, 08-CV-4735 CW

Case4:08-cv-04735-CW Document143 Filed07/21/09 Page7 of 7

15. In my view, and in the view of Class Counsel, the Stipulation of 2 Settlement provides significant relief to the proposed class and constitutes a fair, reasonable, and 3 adequate compromise of the claims asserted in the above-captioned case.

4

5

I declare under penalty ofperjury under the laws of the State of California that the

6 foregoing is true and correct, and that this Declaration was executed on this 21 st day of July

7 2009, in Los Angeles, California.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
25 26 27
28
8396139.1

-5-

McINTYRE DECL. ISO PLAINTIFFS' MOTION FOR
PRELIMINARY ApPROVAL OF CLASS SETTLEMENT;
CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page1 of 32
Exhibit 1

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page2 of 32

DAVID H. FRY (SBN 189276)
David.Fry@rnto.com 2 MARK R. CONRAD (SBN 255667)
Mark. Conrad@mto.com 3 JEREMY S. KROGER (SBN 258956)
leremy.Kroger@mto.com 4 MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor 5 San Francisco, CA 94105-2907
T: (415) 512-4000/ F: (415) 512-4077
6
GERALD A. McINTYRE (SBN 181746) 7 gmcintyre@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER
8 3435 Wilshire Blvd., Suite 2860 Los Angeles, CA 90010-1938
9 T: (213) 674-2900/ F: (213) 639-0934

10 ANNA RICH (SBN 230195) arich@nsclc.org
11 KEVIN PRINDIVILLE (SBN 235835) kprindiville@nsclc.org
12 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
13 Oakland, CA 94612 T: (510) 663-1055 / F: (510) 663-1051
14 Attorneys for PLAINTIFFS
15 ADDITIONAL COUNSEL LISTED ON NEXT PAGE

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20 ROSA MARTINEZ, JIMMY HOWARD,
ROBERTA DOBBS, BRENT 21 RODERICK, SHARON ROZIER, and
JOSEPH SUTRYNOWICZ, on behalf of 22 themselves and all others similarly situated,

23

Plaintiffs,

CASE NO. 08-CV-4735 CW

STIPULATION OF SETTLEMENT

Date:
Time: Dept:

August 11, 2009
2:00 p.m. Courtroom 2, 4th Floor

24

vs.

The Hon. Claudia Wilken

25 MICHAEL 1. ASTRUE, Commissioner of Social Security, in his official capacity,
26
Defendant.
27

28
8396248.2

STIPULATION OF SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page3 of 32

1 EMILIA SICILIA esicilia@urbanjustice.org
2 JENNIFER PARISH jparish@urbanjustice.org
3 URBAN JUSTICE CENTER 123 Willianl Street, 16th Fl.
4 New York, NY 10038 T: (646) 602-5668/ F: (212) 533-4598
5 CHRISTOPHER A. DOUGLAS (SBN 239556)
6 cdouglas@legalaidsmc.org M. STACEY HAWVER (SBN 146012)
7 mshawver@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
8 521 East 5th Avenue San Mateo, CA 94402
9 T: (650) 558-0915 / F: (650) 558-0673
10 MARILYN HOLLE (SBN 61530) marilyn.holle@disabilityrightsca.org
11 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd. Suite 902
12 Los Angeles, CA 900]0-2522 T: (213) 427-8747 I F: (213) 427-8767
13 Attorneys for PLAINTIFFS
14
15 JOSEPH P. RUSSONIELLO (SBN 44332) United States Attorney
16 JOANN M. SWANSON (SBN 88143) Chief, Civil Division
17 VICTORIA R. CARRADERO (SBN 217885) Assistant United States Attorney
18 ANDREW Y.S. CHENG (SBN 164613) Assistant United States Attorney
19 MICHAEL T. PYLE (SBN 172954) Assistant United States Attorney
20 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495
21 Telephone: (415) 436-6813 Facsimile: (415) 436-6748
22 Email: Andrew.Cheng@usdoj.gov Email: Victoria.Carradero@usdoj.gov
23 Attorneys for FEDERAL DEFENDANT
24
25
26
27
28
8396248.2

STIPULATION OF SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page4 of 32

RECITALS
2
WHEREAS, on October 15, 2008, Plaintiffs Rosa Martinez and Jimmy Howard 3
filed this putative class action lawsuit against Defendant Michael J. Astrue, in his official capacity 4
as Commissioner of Social Security; 5
WHEREAS an Amended Complaint was filed on December 12, 2008 adding 6
Plaintiffs Roberta Dobbs, Brent Roderick, Sharon Rozier, and Joseph Sutrynowicz; 7
WHEREAS Plaintiffs allege that Defendant's policy of denying or suspending 8
benefits to persons on the basis of an outstanding felony arrest warrant and not permitting persons 9
with outstanding felony arrest warrants to serve as representative payees violates the Social 10
Security Administration's governing statutes and regulations; 11
WHEREAS Defendant denies Plaintiffs' allegations, denies all liability with 12
respect to the Action, and denies that it committed any violation of law; 13
WHEREAS the Parties desire to resolve amicably all the claims raised in the 14
above-captioned action without admission of liability in order to avoid the substantial expense, 15
inconvenience, and distraction of protracted litigation; 16
WHEREAS the Parties have conducted discussions and arm's length negotiations 17
with Defendant's Counsel with respect to a compromise and settlement of the Action with a view 18
to settling the issues in dispute and furnishing relief consistent with the interests of the Named 19
Plainti ffs and the Class; 20
WHEREAS the Parties (1) have concluded that the terms and conditions of this 21
Stipulation of Settlement are fair, reasonable and in the best interests of the Named Plaintiffs and
22
the Class; (2) have agreed that the Released Parties should be released from the Released Claims 23
pursuant to the terms and provisions of this StipUlation of Settlement; (3) and have agreed to the 24
dismissal of the Action with prejudice, after considering the substantial benefits that the Named
25
Plaintiffs and the Class will receive from settlement of the Action, the risks of litigation, and the
26
desirability of permitting the Settlement to be consummated as provided by the terms of this 27
StipUlation of Settlement; 28

8396248.2

- 1-

STIPULATION OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page5 of 32

NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and

2 among the Named Plaintiffs and Defendant, through their respective attorneys, subject to

3 approval by the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, in

4 consideration of the benefits flowing to the Parties from the Settlement Agreement, that all

5 Released Claims shall be compromised, settled, forever released, barred and dismissed, with

6 prejudice, upon and subject to the following terms and conditions.

7 DEFINITIONS

8

"Action" means the litigation in the United States District Court, Northern District

9 of California, Case No. 08-CV-4735 CWo

10

The "Benefit Programs" means, collectively, the SSI, SVB, and OASDI benefit

11 programs under the Social Security Act.

12

"Class Counsel" or "Plaintiffs' Counsel" means: the National Senior Citizens Law

13 Center; Munger, Tolles & Olson, LLP; the Urban Justice Center; Disability Rights California; and

14 the Legal Aid Society of San Mateo County.

15

The "Class" or "Class Members" means: for purposes of this settlement only, a

16 Plaintiff class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, comprising: All

17 persons whose SSI, SVB, or OASDl benefits have been suspended or denied, or who have been

18 notified of a proposed suspension or denial of such benefits, for "fleeing to avoid prosecution or

19 custody or confinement after conviction" for a felony or who are not permitted to serve as

20 Representative Payees for SSI, SVB or OASDI benefits for "fleeing to avoid prosecution or

21 custody or confinement after conviction" for a felony. The class shall not include, and this

22 settlement shall not apply to, any individual who has received a final federal court disposition

23 regarding payment or nonpayment of benefits due to fugitive felon status.

24

"Court" means the United States District Court for the Northern District of

25 California.

26

"Defendant" or "the Commissioner" means Michael J. Astrue, the Commissioner

27 of Social Security, in his official capacity.

28

8396248.2

- 2-

STIPULATION OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page6 of 32

"Effective Date" means 61 days from the Court's entry of an order granting final

2 approval of the settlement terms or after which the time to file any appeal has concluded and any

3 and all objections have been resolved and appeals have been exhausted, whichever is later.

4

"Final Approval Date" means the date upon which the Court enters an order

5 granting final approval of this Settlement Agreement, after having determined that it is adequate,

6 fair, reasonable, equitable, and just to the Class as a whole after a hearing on the faimess of the

7 settlement.

8

"Lead Class Counsel" or "Lead Plaintiffs' Counsel" means Gerald McIntyre of the

9 National Senior Citizens Law Center.

10

"Named Plaintiffs" refers to Rosa Martinez, Jimmy Howard, Roberta Dobbs, Brent

11 Roderick, Sharon Rozier, and Joseph Sutrynowicz.

12

"National Crime Information Center (NCIC) codes" refer to the offense codes

13 categorizing felony arrest warrants on the FBI's national database.

14

"OASDI" means Old Age, Survivors, and Disability Insurance, under Title II of

15 the Social Security Act.

16

"Overpayment" means a determination made by the Commissioner that a program

17 beneficiary has received more than the correct benefit payment due because of a benefit

18 suspension based on an outstanding felony arrest warrant, unless the suspension was based on a

19 warrant with a NCIC felony offense code of 4901 (Escape), 4902 (Flight to avoid prosecution,

20 confinement), or 4999 (Flight-Escape).

21

"Parties" refers to the Named Plaintiffs, the Class, and Defendant.

22

"Plaintiffs" refers to the Named Plaintiffs, acting on their own behalf and on

23 behalf of all Class Members.

24

"Post- 2006 Class Members" means all Class Members for whom SSA made an

25 initial suspension, initial denial, or administrative appeal denial on or after January 1, 2007 based

26 on an outstanding felony arrest warrant unless the determination was based on an outstanding

27 felony arrest warrant with a NCIC code of 4901,4902, or 4999; or with a pending administrative

28 claim challenging any such suspension or denial as of August 11,2008.

8396248.2

-3 -

STIPULATION OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page7 of 32

1

"Pre-2007 Class Members" means all Class Members for whom SSA made an

2 initial suspension or initial denial based on an outstanding felony arrest warrant unless the

3 determination was based on an outstanding felony arrest warrant with a NCIC code of 4901,

4 4902, or 4999, on or after January I, 2000, but before January 1, 2007, and who did not obtain an

5 administrative appeal denial on or after January 1,2007; or who did not have a pending

6 administrative claim on August 11,2008 appealing such a suspension or denial.

7

"Preliminary Approval Date" means the date upon which the Court enters the

8 Order attached as Exhibit A preliminarily approving this Settlement Agreement, and setting a

9 fairness hearing.

10

"Released Claims" means any and all claims asserted in the First Amended

11 Complaint by and/or on behalf of the Class Members, and claims related to the subject matter of

12 this litigation that could have been asserted in the First Amended Complaint.

13

"Released Parties" means Defendant, his predecessors, successors, departments,

14 agencies, past or present agents, employees and contractors.

15

"Releasing Parties" means Plaintiffs, the Class and the Class Members, on behalf

16 of themselves, their heirs, executors, administrators, representatives, attorneys, successors,

17 assigns, agents, affiliates, and partners, and any Persons they represent. Nothing in this definition

18 shall be interpreted to contravene 42 U.S.C. § 407 prohibiting transfer or assignment of claims or

19 benefits.

20

"Representative Payee" means an individual who has been selected or appointed to

21 receive payments on behalf of any beneficiary of the Benefit Programs pursuant to 42 V.S.c. §§

22 405U), 1007(d), or 1383(a).

23

"SSA" means the Social Security Administration.

24

"Settlement Agreement," "Settlement," or "Agreement" means this Stipulation of

25 Settlement, including the attached exhibits.

26

"SSI" means Supplemental Security Income under Title XVI ofthe Social Security

27 Act.

28

"SVB" means Special Veterans Benefits under Title VIII of the Social Security Act.

8396248.2

-4-

STIPULATION OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page8 of 32

1

AGREEMENT

2

ARTICLE I

3

APRIL 1,2009 POLICY CHANGE

4 1.1 Effective April 1, 2009, SSA suspends/denies benefits/payments to Class
5 Members using the current policy and procedure only for three categories ofNCIC Uniform
6 Offense Classification Codes as follows: Escape (4901); Flight to avoid (prosecution,
7 confinement, etc.) (4902); and Flight-Escape (4999). SSA's policy is set forth in Policy
8 Instruction EM-09025. See Exhibit B.
9 1.2 Effective April 1, 2009, SSA applies the policy in paragraph 1.1 when considering
10 a person's request to serve as a Representative Payee. However, SSA may use all warrant
11 information in determining an individual's suitability to serve as a Representative Payee. See
12 Exhibit C.
13
ARTICLE II 14
RELIEF TO POST-2006 CLASS MEMBERS 15

16

2.1 SSA shall provide relief to all Post-2006 Class Members consistent with the

17 following provisions.

18

2.2 SSA shall identify and remove overpayments resulting from initial suspensions,

19 initial denials, or administrative appeal denials SSA made on or after January 1, 2007 based on an

20 outstanding felony arrest warrant unless based on a warrant with NCIC codes of 4901,4902, or

21 4999 for any period of suspension prior to January 1, 2007 back to the first month of suspension.

22 SSA will repay any sums already collected pursuant to the overpayment determination.

23

2.3 SSA will reinstate benefit payments for any periods of suspension subject to a

24 redetermination of non-medical eligibility criteria. Normal redetermination procedures will apply.

25 Close out procedures consistent with the guidance in existing POMS will apply. SSA may

26 conduct continuing disability reviews (CDRs) pursuant to generally applicable SSA policies after

27 benefits/payments have been reinstated.

28

8396248.2

-5-

STIPULATION OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page9 of 32

2.4 SSA may need to reopen a previously denied claim to assess medical and non-

2 medical eligibility criteria, except that where a medical determination of disability has already

3 been made, the medical determination shall not be reopened except pursuant to generally

4 applicable SSA policies. Normal determination of non-medical eligibility criteria will apply.

5

2.5 Except as stated herein, all payments to Post-2006, Class Members are subject to

6 regular payment, nonpayment, and reduced payment provisions of the Social Security Act.

7

2.6 Following the Effective Date, SSA shall contact the Post-2006 Class Members

8 through individual notices mailed to the last known address on SSA records. SSA shall bear the

9 cost ofthis notice. The notices generally shall advise that SSA's policy regarding outstanding

10 felony arrest warrants has changed and that the individuals may be entitled to or eligible for

11 benefits or payments for applicable periods of suspension or non-payment.

12

ARTICLE III

13

RELIEF TO PRE-2007 CLASS MEMBERS

14 3.1 SSA shall provide relief to all Pre-2007 Class Members consistent with the
15 following provisions.
16 3.2 SSA shall cease to collect overpayments of any previous benefit payments made to
17 Pre-2007 Class Members and shall remove any remaining balance. Nothing in this paragraph
18 shall be read to require SSA to reimburse Pre-2007 Class Members for any benefit payments that
19 the Pre-2007 Class Members have already repaid to the SSA, unless the individual meets the
20 conditions required by SSA regulations for reopening a claim.
21 3.3 Except as stated herein, all payments to Pre-2007 Class Members are subject to
22 regular payment, nonpayment, and reduced payment provisions of the Social Security Act.
23 3.4 Following the Effective Date, SSA shall send individual notices, mailed to the
24 most recent address in SSA's records, to each Pre-2007 Class Member who is not receiving
25 benefits as of April 1,2009 on the basis that they have an outstanding felony arrest warrant other
26 than three categories ofNCIC codes of 4901,4902, and/or 4999. SSA shall bear the cost of this
27 one-time notice and will not conduct any follow-up address search or mailing. The notice will
28

8396248.2

-6 -

STIPULATION OF SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page10 of 32

1 inform the individual that SSA suspends or denies benefits/payments using the current policy and 2 procedure only for three categories ofNCIC codes 4901,4902 and/or 4999. The notice will state 3 that, if the individual thinks he/she may be eligible for benefits/payments, he/she may contact 4 SSA through the 1-800 telephone number to schedule an appointment for prospective 5 reinstatement of Title II benefits or to file a new application for Title II (ifrequired), Title VIII, or 6 Title XVI benefits. Unless an individual covered by Article II also has a separate suspension or 7 denial in the period January 1, 2000 through December 31, 2006 for an outstanding felony arrest 8 warrant except for warrants with codes of 4901,4902, and/or 4999, the individual would not

9 receive the notice covered in this paragraph.

10

3.5 If a Pre-2007 Class Member contacts SSA to make an appointment within six

11 months of the date on the notice mailed pursuant to the preceding paragraph, that individual shall

12 receive a "protective filing date" of April 1, 2009, for any subsequent application for benefits or

13 request for reinstatement-i.e., SSA will treat that individual's application or request as if it had

14 been filed on April 1,2009. 15 16

ARTICLE IV PUBLICATION

17 4.1 Immediately following the Final Approval Date, SSA shall publicize the terms of
18 this Agreement consistent with the following provisions.
19 4.2 SSA shall post a news item on its official, public website, www.socialsecurity.gov,
20 that will summarize the key provisions of this Agreement, including the provisions set forth in
21 ARTICLE I, ARTICLE II, and ARTICLE III.
22 4.3 SSA shall revise the "fugitive felon" webpage, located at
23 www.ssa.gov/oig/investigations/fugitivefelonlfugitivefelon.htm. to reflect the changes in policy
24 set forth in this Agreement.
25 4.4 SSA shall publish a Social Security Ruling in the Federal Register. The Ruling
26 shall explain how SSA will implement the fleeing felon provisions under the terms of this
27 Agreement. The Ruling shall also be made available on SSA's website, www.socialsecurity.gov.
28

83962482

-7-

STIPULATION OF SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page11 of 32

ARTICLE V

2

TIMEFRAMES FOR IMPLEMENTATION

3 5.1 On June 12,2009, SSA developed implementation plans to set forth all anticipated
4 timeframes for implementing the terms of this Agreement. The timeframes set forth by SSA
5 refleet due diligence in implementation. Should the court substantively alter the tenns of the this
6 Settlement Agreement such that SSA's implementation plans must be amended, and SSA agrees
7 to the amendment, SSA will have an additional 60 business days from the Final Approval Date to
8 submit final implementation plans.
9 5.2 IfSSA needs to make a significant adjustment to the June 12,2009,
10 implementation plan either due to changes required by '15.1 of this agreement or due to currently
11 unknown facts or unanticipated circumstances (including changes in the fairness hearing date or
12 the effective date of the settlement), SSA wiIl notify Lead Class Counsel and explain the facts or
13 circumstances. Upon receipt of any such notice and explanation, Lead Class Counsel may notify
14 SSA of any concerns about the adjustment and the parties will seek to resolve these concerns
15 amicably. If, in Lead Class Counsel's view, SSA does not adequately respond to the concerns,
16 Lead Class Counsel will follow the dispute resolution procedures described in Article X.
17 ARTICLE VI
18 INQUIRIES, COMMENTING, AND REPORTING
19

20

6.1 SSA shall designate an individual who will serve as a point of contact for Lead

21 Class Counsel. Said individual will act in good faith to address any inquiries from Lead Class

22 Counsel related to the implementation of this Agreement.

23

6.2 SSA shall provide to Lead Class Counsel an advance copy of any draft POMS

24 instructions, Emergency Messages, and the one-time draft notices (stipulated in paragraphs 2.6

25 and 3.4) to Class Members issued in implementation ofthis Settlement Agreement. Lead Class

26 Counsel will provide comments, if any, to SSA, within two business days of receiving the drafts.

27 SSA is not obligated to respond to Lead Class Counsel's comments or to incorporate those

28 comments into any POMS instructions, Emergency Messages, or notices that it issues.

8396248,2

-8 -

STJPULATJON OF SETTLEMENT; CASE No. 08-CV -4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page12 of 32

1

6.3 The SSA shall provide Lead Class Counsel with notification of:

2

(a) the dates that the SSA begins and substantially completes each phase of the

3 implementation plan developed by the SSA pursuant to ARTICLE V of this Settlement

4 Agreement; and

5

(b) the aggregate number of notices sent to individuals pursuant to ARTICLE

6 II and ARTICLE III of this Agreement.

7

ARTICLE VII

8

ENTIRE AGREEMENT

9

7.1 The terms of this Settlement Agreement and any exhibits thereto are the exclusive

10 and full agreement of the Parties with respect to all claims for relief and attorneys' fees and costs

11 as set forth in this Settlement Agreement and in the First Amended Class Action Complaint. No

12 representations or inducements or promises to compromise this action or enter into this

13 Settlement Agreement have been made, other than those recited or referenced in this Settlement

14 Agreement.
15 7.2 This Settlement Agreement is not intended to change, modify, or revise SSA's or

16 the Office of Inspector General's implementation of sections 202(x)(3)(C) and 1611(e)(5)(A) of

17 the Social Security Act with regard to the disclosure of information to federal, state or local law

18 enforcement.
19
20
21

ARTICLE VIII APPROVAL

22

8.1 This Settlement Agreement is expressly conditioned upon its approval by the

23 Court.

24

8.2

The terms of this Settlement Agreement are adequate, fair, reasonable, equitable

25 and just.

26 27 28
8396248.2

-9-

STIPULATlON OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page13 of 32

1

ARTICLE IX

2

FINAL JUDGMENT

3 9.1 If, after the fairness hearing, the Comi approves this Settlement Agreement as
4 adequate, fair, reasonable, equitable and just, the Court shall direct the entry of an order
I
5 dismissing this action with prejudice, pursuant to the terms of this Settlement Agreement and Fed.j
6 R. Civ. P. 41 (a)(2), except that the Court shall retain jurisdiction for the limited purposes
7 described in ARTICLE X of this Settlement Agreement. The Court's order shall incorporate the
8 terms of the Settlement Agreement.
9 ARTICLE X
10 CONTINUING JURISDICTION
11

12

10.1 The Court will retain jurisdiction over this matter for the purposes of (a) enforcing

13 the provisions of the Settlement Agreement in the event that one of the Parties claims (after

14 following this Agreement's dispute resolution procedures) that there has been a breach of the 15 Settlement Agreement; (b) modifying the Settlement Agreement ifjointly requested by the Parties

16 pursuant to ARTICLE XI and (c) entering any other order authorized by the Settlement

17 Agreement. Both Class Counsel and Defendant's counsel will make good faith efforts to

18 amicably resolve issues with regard to the Agreement. If the parties are not able to resolve

19 matters, they will engage in good faith mediation discussions before a magistrate judge

20 designated by the court (the parties' preference is Magistrate Judge Edward Chen), prior to

21 seeking enforcement pursuant to this Article.

22

ARTICLE XI

23

MODIFICATION

24 11.1 At any time while the Court retains jurisdiction over this matter as described in
25 ARTICLE X, Plaintiffs and Defendant may jointly agree to modify this Settlement Agreement.
26
Any request for modification must be in writing, signed by both Class Counsel and Defendant's 27
counsel, and is subject to approval by the Court. 28

8396248.2

- 10-

STIPULA TlON or: SETTLEMENT;
CASE No. 08-CV -4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page14 of 32

1

ARTICLE XII

2

CHANGE IN CONTROLLING LAW

3 12.1 A change in controlling law, e.g., an amendment to the Social Security Act that is
4
inconsistent with the terms of this Agreement, shall supersede the terms of this Agreement.
5 ARTICLE XIII
6 RELEASE
7

8

13.1 This Settlement Agreement fully and finally resolves all claims asserted in the

9 First Amended Complaint filed by Plaintiffs on December 12,2008, any and all claims related to

10 the subject matter of this litigation that could have been asserted in the First Amended Complaint.

II Effective upon the Final Approval Date and subject to the terms of ARTICLE VIII and ARTICLE

12 IX above, the Releasing Parties shall be deemed to have, and by operation of the final judgment

13 shall have, funy, finally and forever released, relinquished, discharged, and dismissed with

14 prejudice the Released Parties of and from any and all of the Released Claims, and the Releasing

15 Parties shall forever be barred and enjoined from bringing or prosecuting any Released Claim

16 against any of the Released Parties. Nothing contained herein shall release the Commissioner or

17 SSA of any obligations arising under this Settlement Agreement.

18

ARTICLE XIV

19

NO ADMISSION

20 14.1 This Settlement Agreement does not constitute an admission by the Defendant of
21 any pattern or practice that violates or fails to comply with applicable law governing the matters
22 alleged in this action.
23 14.2 This Settlement Agreement, whether or not executed, and any proceedings taken
24 pursuant to it (a) shall not be construed to waive, reduce or otherwise diminish the authority of
25 the Defendant to enforce the laws of the United States against Class Members notwithstanding
26 the terms of this StipUlation, consistent with the Constitution and laws of the United States; (b)
27 shall not be offered or received against the Defendant as evidence of, or construed as or deemed
28

8396248.2

- 11 -

STIPULATION OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page15 of 32

1 to be evidence of, any presumption, concession, or admission by the Defendant of the truth of any

2 fact alleged by the Plaintiffs or the validity of any claim that had been or could have been asserted

3 in the Action or in any litigation, or the deficiency of any defense that has been or could have 4 been asserted in the Action, or of any liability, negligence, fault, or wrongdoing of the Defendant;

5 or any admission by the Defendant of any violations of, or failure to comply with, the

6 Constitution, laws or regulations; (c) shall not be offered or received against the Defendant as

7 evidence of a presumption, concession, or admission of any liability, negligence, fault, or 8 wrongdoing; and (d) shall not be in any way referred to for any other reason as against any of the

9 Parties in any other civil, criminal, or administrative action or proceeding, other than such

10 proceedings as may be necessary to effectuate the provisions of this Settlement Agreement;

11 provided, however, that if this Settlement Agreement is approved by the Court, Defendant may

12 refer to it and rely upon it to effectuate the liability protection granted it hereunder.

13

ARTICLE XV

14

PAYMENT OF FEES AND COSTS TO CLASS COUNSEL

15 15.1 As part of this Settlement Agreement, Defendant agrees to pay to Class Counsel

16 the sum of Four Hundred Eighty Three Thousand Dollars ($483,000.00) in full satisfaction of all

17 attorneys' fees, costs, and expenses for any and all claims Plaintiffs have asserted or could have

18 asserted in this litigation. No further attorneys' fees or costs will be paid for any actions taken by

19 Class Counsel (or any individual plaintiff's counsel) after March 30, 2009. Unless otherwise

20 agreed to in writing by the Parties, this amount shall be payable as follows:

21

•

National Senior Citizens Law Center

$225,000

22

•

Munger, Tolles & Olson LLP

$141,000

23

•

Urban Justice Center

$70,000

24

•

Disability Rights California

$35,000

25

•

Legal Aid Society of San Mateo

$12,000

26 15.2 These amounts shall be transmitted by way of an Electronic Funds Transfer in

27 accordance with instructions to be provided to SSA by each of the entities listed in Paragraph

28

8396248.2

- 12 -

STIPULAnON OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page16 of 32

1 15.1 above. Class Counsel will promptly and fully cooperate with required forn1s and information

2 necessary for SSA to process payment.

3

15.3 Defendant will use best efforts to arrange for the transfer of these funds within

4 thirty days (30) days following the Effective Date. Defendant shall notify Lead Plaintiffs'

5 Counsel in writing if Defendant learns that there will be a delay beyond this period.

6

ARTICLE XVI

7

ADDITIONAL PROVISIONS

8 16.1 All of the exhibits attached hereto are hereby incorporated by reference as though
9 fully set forth herein.
10 16.2 The headings herein are used for the purpose of convenience only and are not
11 intended to have legal effect.
12 16.3 The waiver by one party of any breach of this Settlement Agreement by any other
13 party shall not be deemed a waiver of any other prior or subsequent breach of this Settlement
14 Agreement.
15 16.4 This Settlement Agreement may be executed in one or more counterparts. All
16 executed counterparts and each of them shall be deemed to be one and the same instrument
17 provided that counsel for the parties to this Settlement Agreement shall exchange among
18 themselves original signed counterparts.
19
16.5 This Settlement Agreement shall be binding upon, and inure to the benefit of, the 20
successors and assigns of the parties hereto. Nothing in this provision shall be interpreted to 21
contravene 42 U.S.c. § 407 prohibiting transfer or assignment of claims or benefits. 22
16.6 This Settlement Agreement shall not be construed more strictly against one party 23
than another merely by virtue of the fact that it, or any part of it, may have been prepared by 24
counsel for one of the parties, it being recognized by the parties that this StipUlation is the result 25
of arm's length negotiations between the parties and that all parties have contributed substantially 26
and materially to the preparation of this StipUlation. 27

28

8396248.2

- 13 -

STIPULATlON OF SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page17 of 32

1

16.7 All counsel and any other person executing this Settlement Agreement and any of

2 the exhibits hereto, or any related settlement documents, warrant and represent that they have the

3 full authority to do so and that they have the authority to take appropriate action required or

4 permitted to be taken pursuant to the Settlement Agreement to effectuate its terms.

5

16.8 Class Counsel and Defendant's Counsel agree to cooperate fully with one another

6 in seeking preliminary approval from the Court of the Settlement Agreement and to promptly

7 agree upon and execute all such other documentation as may be reasonably required to obtain

8 final approval of the Settlement Agreement.

9

16.9 Class Counsel agree not to encourage any Class Member, non-profit agency,

10 individual or attorney to challenge the Settlement Agreement or interfere with the process of

11 obtaining preliminary or final approval of the Settlement Agreement from the Court.

12

13 14 15
DATED: July 21,2009 16 17 18

NATIONAL SENIOR CITIZENS LAW CENTER
Attorneys for Plaintiffs, on behalf of Plaintiffs and all Plaintiffs' Counsel

19

20 21 DATED: July 21,2009 22 23

UNITED STATES ATTORNEY JOSEPH P. RUSSONIELLO Attorney for Defendant

24

By:

----~V~I=C=T=O=R=IA~R-.=C~ARRAD~~-E-R~O------

25

ASSISTANT UNITED STATES ATTORNEY

26

27

28

8396248.2

- 14 -

STIPULA TION OF SETTLEMENT; CASE NO. 08-CV 4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page18 of 32

1

16.7 All counsel and any other person executing this Settlement Agreement and any of

2 the exhibits hereto, or any related settlement documents, warrant and represent that they have the

3 full authority to do so and that they have the authority to take appropriate action required or

4 pennitted to be taken pursuant to the Settlement Agreement to effectuate its tenns.

5

16.8 Class Counsel and Defendant's Counsel agree to cooperate fully with one another

6 in seeking preliminary approval from the Court of the Settlement Agreement and to promptly

7 agree upon and execute all such other documentation as may be reasonably required to obtain

8 final approval of the Settlement Agreement.

9

16.9 Class Counsel agree not to encourage any Class Member, non-profit agency,

10 individual or attorney to challenge the Settlement Agreement or interfere with the process of

11 obtaining preliminary or final approval ofthe Settlement Agreement from the Court.

12

13

14

15 DATED: July 21,2009
16
17
18

NATIONAL SENIOR CITIZENS LAW CENTER
Attorneys for Plaintiffs, on behalfofPlaintiffs
and all Plaintiffs' Counsel

19

By:

-------G=E=RA~L~D~A~.M~c~~~--------

20

21 DATED: July 21,2009 22 23 24
25
26

UNITED STATES ATTORNEY JOSEPH P. RUSSONIELLO Attorney for Defendant
BY:.~h~ll~;,'T~·!~Ol~~A~/R'~iRfIAld2o~,E~ftRI.~L-.-7 ASSISTANT UNITED STATES ATTORNEY

27

28

8396248.2

- 14-

STIPULATlON OF SETI1..EMENT; CASE.No. Os..cV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page19 of 32
Exhibit A

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page20 of 32

DAVID H. FRY (SBN 189276) David.Fry@mto.com 2 MARK R. CONRAD (SBN 255667)
Mark.Conrad@mto.com 3 JEREMY S. KROGER (SBN 258956)
Jeremy.Kroger@mto.com 4 MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor 5 San Francisco, CA 94105-2907
T: (415) 512-40001 F: (415) 512-4077
6 GERALD A. MclNTYRE (SBN 181746)
7 gmcintyre@nsclc.org NATIONAL SENIOR CITIZENS LAW CENTER
8 3435 Wilshire Blvd., Suite 2860 Los Angeles, CA 90010-1938
9 T: (213) 674-29001 F: (213) 639-0934

10 ANNA RICH (SBN 230195) arich@nsc1c.org
11 KEVIN PRINDIVILLE (SBN 235835) kprindi vi lle@nscIe.org
12 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
13 Oakland, CA 94612 T: (510) 663-10551 F: (510) 663-1051
14 Attorneys for Plaintiffs
15 ADDITIONAL COUNSEL LISTED ON NEXT PAGE

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20 ROSA MARTINEZ, JIMMY HOWARD, ROBERTA DOBBS, BRENT
21 RODERICK, SHARON ROZIER, and JOSEPH SUTRYNOWICZ, on behalf of
22 themselves and all others similarly situated,

23

Plaintiffs,

24

vs.

25 MICHAEL J. ASTRUE, Commissioner of Social Security, in his official capacity,
26 Defendant.
27

CASE NO. 08-CV-4735 CW
[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CLASS CERTIFICATION, AND APPOINTMENT OF CLASS COUNSEL, AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING
The Hon. Claudia Wilken

28
83962671

[PROPOSED) ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVALOF CLASS
SETt'LEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page21 of 32

1 EMILIA SICILIA esicilia@urbanjustice.org
2 JENNIFER PARISH jparish@urbanjustice.org
3 URBAN JUSTICE CENTER 123 William Street, 16th Fl.
4 New York, NY 10038 T: (646) 602-56681 F: (212) 533-4598
5 CHRISTOPHER A. DOUGLAS (SBN 239556)
6 cdouglas@legalaidsmc.org M. STACEY HAWVER (SBN 146012)
7 mshawver@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
8 521 East 5th Avenue San Mateo, CA 94402
9 T: (650) 558-09151 F: (650) 558-0673

10 MARILYN HOLLE (SBN 61530)

marilyn.holle@disabilityrightsca.org

11 DISABILITY RIGHTS CALIFORNIA

3580 Wilshire Blvd. Suite 902

12 Los Angeles, CA 90010-2522 T: (213) 427-8747 1F: (213) 427-8767

13 Of Counsel for Plaintiffs ROSA MARTINEZ, JIMMY

14

HOWARD, ROBERTA DOBBS, BRENT RODERICK,

SHARON ROZIER, JOSEPH SUTRYNOWICZ, and all

15

others similarly situated

16

17 JOSEPH P. RUSSONIELLO (CSBN 44332)

United States Attorney 18 JOANN M. SWANSON (CSBN 88143)

Chief, Civil Division 19 VICTORIA R. CARRADERO (CSBN 217885)

Assistant United States Attorney

20 ANDREW YS. CHENG (CSBN 164613)

Assistant United States Attorney

21 MICHAEL T. PYLE (CSBN 172954)

Assistant United States Attorney

22 450 Golden Gate Avenue, 9th Floor

23

San Francisco, California 94102-3495

Telephone: (415) 436-6813

24

Facsimile: (415) 436-6748

Email: andrew.cheng@usdoj.gov

25

Attorneys for Federal Defendant

26

27

28
8396267.1

[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page22 of 32

1 [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR

2

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT,

CLASS CERTIFICATION, AND APPOINTMENT OF CLASS COUNSEL,

3

AND DIRECTING CLASS NOTICE AND SETTING FINAL FAIRNESS HEARING

4

5

WHEREAS, Plaintiffs filed this putative class action on October 15, 2008, and

6 filed their First Amended Complaint on December 12, 2008;

7

WHEREAS, this lawsuit challenges the operation and application ofa policy of

8 the Social Security Administration as inconsistent with the federal statutes and agency regulations

9 governing the Old Age, Survivors, and Disability Insurance ("OASDI"), Supplemental Security

10 Income ("SSI"), and Special Veterans Benefits ("SVB") programs, see 42 U.S.c.

11 §§ 402(x)(I)(A)(iv) (OASDI), 1004(a)(2) (SVB), 1382(c)(4)(A) (SSI); see also 20 C.F.R. §

12 416. 1339(b); id § 408.81O(b);

13

WHEREAS, Defendant vigorously denies these allegations;

14

WHEREAS, counsel for Plaintiffs and counsel for the Commissioner of Social

15 Security have reached af,Tfeement on the terms of a class-wide settlement of this action, which

16 settlement encompasses the substantial modification of SSA policies pertaining to the OASDI,

17 SSI, and SVB programs, as well as prospective and retroactive reliefto individuals affected by

18 the challenged policies;

19

WHEREAS, Plaintiffs have submitted a Motion for Preliminary Approval of Class

20 Action Settlement, Class Certification, and Appointment of Class Counsel, and Directing Class

21 Notice and Setting Final Fairness Hearing;

22

WHEREAS, Defendant does not oppose the action of seeking preliminary

23 approval of the settlement, settlement-class certification, appointment of class counsel, directing

24 class notice, and setting a fairness hearing;

25

NOW, THEREFORE, having considered Plaintiffs' motion, as well as the

26 memorandum of points and authorities submitted in support thereof, the Court hereby ORDERS

27 as follows:

28 II

8396267.1

- 1-

[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE No. 08-CV -4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page23 of 32

1

1. Settlement Class. The Court finds: (a) that the members of the proposed

2 settlement class are sufficiently numerous--with tens of thousands of individuals who could be

3 entitled to relief under the claims asserted through this action-that the joinder of all sueh 4 individuals as plaintiffs in this action would be impracticable; (b) that there are questions of law 5 common to the proposed class, including the lawfulness of certain policies adopted by the Social

6 Security Administration in its administration of the OASDI, SSI, and SVB federal benefits

7 programs; (c) that the claims of the named plaintiffs, or class representatives, are typical of the

8 claims of the proposed settlement class; and (d) that the class representatives are capable of fairly

9 and adequately protecting the interests of the proposed settlement class. The Court further finds 10 that the Social Security Administration has administered and applied the challengcd Policy in a

] ] manner that applies generally to the proposed settlement class. Therefore, the Court holds that

12 certification of the proposed class is appropriate under Federal Rule of Civil Procedure 23(b)(2),

13 and the following class of plaintiffs (hereinafter "Settlement Class") is hereby CERTIFIED:

14

All persons whose SSI, SVB, or OASDI benefits have been suspended or denied,

or who have been notified of a proposed suspension or denial of such benefits, for

15

"fleeing to avoid prosecution or custody or confinement after conviction" for a

felony or who are not permitted to serve as Representative Payees for SSI, SVB

16

or OASDI benefits for "fleeing to avoid prosecution or custody or confinement

after conviction" for a felony. The class shall not include, and this settlement shall

17

not apply to, any individual who has received a final federal court disposition

regarding payment or nonpayment of benefits due to fugitive felon status.

18

2. Class Counsel. The Court finds that Plaintiffs' counsel have provided and will

19

continue to provide representation that is adequate to protect the interests of the Settlement Class.

20

Specifically, the Court finds that Plaintiffs' counsel have identified and investigated potential

21

claims, have vigorously prosecuted the lawsuit thus far, and have committed substantial resources

22

to their representation of the Settlement Class. FUliher, Plaintiffs' counsel possess knowledge

23

and expertise sufficient to represent the interests of the Settlement Class in an action regarding the

24

rights of beneficiaries under federal entitlement and benefits programs, including the application

25

of the policy challenged in this lawsuit. Therefore, pursuant to Rule 23(c)(1) and Rule 23(g), the

26

National Senior Citizens Law Center; the law firm of Munger, Tolles & Olson LLP; the Urban

27

II

28

8396267.1

-2-

[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVALOF CLASS
SETTLEMENT; CASE No. 08·CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page24 of 32

1 Justice Center; the Legal Aid Society of San Mateo County; and Disability Rights California

2 (hereinafter "Class Counsel") are hereby APPOINTED as counsel for the Settlement Class.

3

3. Preliminary Approval of Stipulation of Settlement. The Court finds that the

4 terms of the parties' Stipulation of Settlement arc fair, reasonable, and adequate to the Settlement

5 Class. Specifically, the Court finds that the SSA's agreement to amend the challenged policy

6 constitutes substantial and immediate prospective relief that has benefited and will benefit the

7 Settlement Class. The Court further finds that the direct relief provided to the vast majority of the

8 Settlement Class-including (a) the reinstatement of class members' benefits denied or suspended

9 on or after January 1, 2007, insofar as the denial or suspension was premised on fugitive fclon

10 status, as explained in the Stipulation of Settlement, and (b) the elimination of outstanding

11 overpayment balances based on such fugitive felon status with the availability of a protective

12 filing date for class members whose benefits were denied or suspended between January 1, 2000,

13 and December 31,2006, and are not in pay status as of April 1,2009, based on such fugitive felon

14 status, as explained in the Stipulation of Settlement-is a reasonable compromise of claims in

15 light of the complexity and risk of further litigation. Therefore, pursuant to Rule 23(e), the

16 parties' Stipulation of Settlement is hereby preliminarily APPROVED.

17

4. Notice of Settlement. The Court hereby ORDERS that the SSA shall provide

18 notice to class members by publication of the notice, attached hereto as Exhibit A, on its website.

19 The Court further ORDERS that Class Counsel disseminate the notice to the following

20 organizations that advance generally the interests of members of the Settlement Class and that

21 have resources necessary to advise class members about the existence and terms of the Stipulation

22 of Settlement: the ABA Commission on Law and Aging; AARP; Bazelon Center for Mental

23 Health Law; Brennan Center for Justice; Center on HIV Law and Policy; Legal Action Center;

24 Consortium for Citizens with Disabilities; National Academy of Elder Law Attorneys; National

25 Alliance on Mental Illness; National Disability Rights Network; National Coalition for the

26 Homeless; National Law Center on Homelessness and Poverty; National Organization of Social

27 Security Claimants' Representatives; National Policy and Advocacy Council on Homelessness;

28 II
8396267.1

-3-

[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE No. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page25 of 32

Philippine Veterans Affairs Office (Quezon City); and Sargent Shriver National Center on

2 Poverty Law.

3

5. Fairness Hearing. The Court ORDERS that a fairness hearing for final

4 approval of the Stipulation of Settlement shall be held on Thursday, September 24,2009, at 2:00

5 p.m. The Court further ORDERS that any objections to the Stipulation of Settlement shall be

6 filed with the Court not later than Thursday, September 10, 2009.

7

8

IT IS SO ORDERED.

9

10 DATED: ------------.-----11
12
13 Submitted by:
14 DATED: July 21,2009
15
16
17
18
19
20

The Honorable Claudia A. Wilken United States District Court Judge
MUNGER, TOLLES & OLSON LLP Attorneys for Plaintiffs
By:____. lsi Mark R. Conrad MARK R. CONRAD

21 22 23 24 25
26 27 28
8396267.1

- 4-

[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS
SETTLEMENT; CASE NO. 08-CV-4735 CW

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page26 of 32
Exhibit B

PolicyNetJClnasstreu4c:t0io8n-scvU-0p4da7t3e5s-/CEMW-09D0o2c5u:mFeugnitt1iv4e3-F1elonF:ilSetdo0p7S/2u1s/p0e9nsPioangoer27D.o..f P32age 1 of 4

Policy Instnlction
Previous I Next

identification Number EM-0902S

Effective Date: 04/01/2009

All Intended Audience: RCs/ARCs/ADs/FOs/TSCs/PSCs/OCO/OOARHQ/ALJs

Originating Office: OROP OISP

Title:

Fugitive Felon: Stop Suspension or Denial of Individuals with Felony Warrants Affected by the Martinez Settlement

Type:

EM - Emergency Messages

Program:

Title II (RSI); Title VIII (SVB); Title XVI (551)

Link To Reference:

See References at the bottom of this EM

Retention Date: October 1, 2009

Background: As a result of a settlement agreement in Martinez, et al. v. Astrue, which should soon be approved by the court, this Emergency Message (EM) provides new instructions for processing Title II, Title VIII, Title XVI payments and representative payee actions that involve outstanding felony warrants. Martinez challenged the agency's policy and procedures in applying non payment actions to fugitive felons and non-selection of fugitive felons as representative payees. The settlement agreement requires the agency to change its processing of certain fugitive felon non-payments and non-selections (representative payees) effective April 1,2009.
NOTE: The Martinez settlement does not affect SSA's policy or procedures for processing Title II, Title VIII, or Title XVI payments or representative payee actions for cases involving outstanding parole or probation violation warrants (e.g. offense codes 5011 and 5012.) Therefore, continue to follow current instructions for processing cases involving these warrants.
Martinez Settlement Policy Effective immediately, SSA policy is to suspend or deny Title II and Title VIII benefits or Title XVI payments, and to prohibit an individual from serving as a representative payee only if the individual's outstanding felony warrant was issued for one of the following three offenses:
• Escape (offense code 4901), • Flight to Avoid prosecution, confinement, etc. (offense code
4902), and • Flight-Escape (offense code 4999).

If more than one felony warrant exists, only suspend, deny, or do not select as a representative payee only for months during which the individual has a

https:/Isecure.ssa.gov/apps 10/public/reference.nsf/8b709aba3e20aOdd852574da... 7/2112009

PolicyNetllCnastsreu4ct:i0o8n-scvU-p0d4a7t3e5s-/CEMW-09D0o2c5u: mFuegnitt1iv4e3F-1elonF:ilSetdo0p7S/2u1s/p0e9nsPioangoer2'8" of P3a2ge 2 of 4
felony warrant with one of these three offense codes.
Processing Instructions Apply the following instructions to individuals in all states including New York, Connecticut, and Vermont. The Martinez settlement should be used instead of referencing the EQwlk~~ Acquiescence Ruling (AR 06-1(2».
1. Initiate action for suspension, non-payment, or claims denial based on an outstanding felony warrant with a felony offense code of 4901,4902, or 4999 shown on the Fugitive Felon System Control File.
2. If an appeal is pending at the reconsideration, hearing, or Appeals Council level, apply the policy in this EM when making the appeal decision.
3. If a representative payee applicant or an existing representative payee has an outstanding felony warrant for offense code 4901, 4902, or 4999, the individual will be prohibited from serving as a representative payee. If any other felony warrant information comes to the attention of the decision-maker, it will be used to determine an applicant's suitability (or continued suitability) to serve as a representative payee.
Title II Initial Claims The Agency no longer asks Title II applicants or claimants about their felony status on any of the Title II benefit applications. For additional information, see GN 02613.050.
Title XVI/Title VIII Eligibility Determinations For Title XVllTitle VIII initial claims, a felony status question still exists on applications. To determine eligibility, verify the felony warrant offense code information to ensure that the individual does not have one of the three offense codes listed above. Complete the fugitive felon questions on the Law Enforcement (ALEF) and Felony Warrant (AWRF) screens. The good cause code "DNH" (individual is residing in a long term care facility) will now also be used to code cases that fall under the Martinez Settlement provisions in order to prevent non-payment of benefits.
Follow current procedures for completing MSSICS screens (MSOM MSSICS 008.022 and MSOM MSSICS 008.023). However, to ensure that payments will continue, also do the following:
• On the AWRF screen, enter "1" (Established) in the GOOD CAUSE field.
• On the DW01 screen in MSSICS, enter "Martinez Settlement" in Remarks.
• On the FFDG (Fugitive Felon Warrant Due Process/Good Cause) screen within the FFSCF (Fugitive Felon SSA Control File), enter "DNH" as the Good Cause reason.
• On the Good Cause Screen in FFAP (Fugitive Felon Automated
https:/Isecure.ssa.gov/apps1 O/public/reference. nsf/8b709aba3e20aOdd852574da... 7/21/2009

PolicyNetlClnastsreu4c:t0io8n-scvU-0pd4a7t3e5s-/CEMW-09D0o2c5u: mFuegnitt1iv4e3F-1elonF:ilSetdo0p7S/2u1s/p0e9nsPioangoer29'" of P32age 3 of 4
Process) document that Martinez relief was granted to the case by entering the "ONH" code.
Representative Payee Applications For representative payees, the question about felony status still exists on applications. If the applicant responds that he or she has an outstanding felony warrant, verify the offense code with OIG (see GN 02613.175 and SI 00530.150.) If the felony warrant offense code is 4901, 4902, or 4999, do not select the payee applicant. Generally, any criminal history casts serious doubt about the payee applicant's character. For any other felony offense code, consider the reason for that warrant and the payeelbeneficiary relationship in making the suitability determination.
Identification of Individuals Affected by the Martinez Settlement Identification of individuals affected by the Martinez settlement will be done centrally and appropriate notices released. Comprehensive instructions on how to handle these cases will also be released at a later date. In the meantime, if individuals contact SSA on their own initiative about the Martinez settlement or because they recently received a notice telling them that their benefits are being suspended or that they are not being selected as a representative payee because of an outstanding warrant for a felony other than the felony offense codes above, follow the instructions below.
A. Field Office Walk-In TrafficlPhone Calls Each FO must maintain and preserve a list of individuals who contact the FO and state they might be due payments in connection with the Martinez settlement. Include on the list, the name, SSN, current address, and phone number for each individual.
No further actions should be taken at this time. Additional processing instructions will be issued at a later date. See also Pipeline Cases, below.
B. TSC Calls If an individual calls the national 800 number about the Martinez settlement, the 800 number agent will create a Manual Development Worksheet (MDW) and include the individual's name, SSN, current address, and phone number. Explain that no further action can be taken at this time, but their contact information will be provided to the individual's servicing field office for future actions. Include in REMARKS the words "Martinez Settlement" and transfer the MDW to the servicing field office.
If an individual calls the national 800 number about receiving a notice of fugitive felon nonpayment on or after April 1,2009, explain the information in Pipeline Cases, below.
C. Pipeline Cases Title II - Due to the nature of the automated system that the agency has been using for fugitive felon non-payment processing, there may be cases in the pipeline which were already handled under the prior policy which resulted in non-payment for all
https:/Isecure.ssa.gov/apps1 0/public/reference.nsf/8b709aba3e20aOdd852574da... 7/21/2009

PolicyNeUClnasstreu4c:ti0o8n-scvU-p0d4a7t3e5s-/ECMW-09D0o2c5u: mFuegnitt1iv4e3F-1elonF:ilSetdo0p7S/2u1s/p0e9nsPioangoer3'0" of P32age 4 of 4
felony offense codes. This automated system releases advance notices of proposed suspension and provides a 35-day protest period before suspension actions can be taken. Because the automation of these pipeline cases can result in non-payments on or after April 1,2009, SSA may not be able to take all corrective actions as required by the Martinez settlement until a later date.
However, beginning April 1, 2009, if a beneficiary contacts SSA within the 35-day advance notice protest period and the offense code on the warrant is other than 4901, 4902, 4999 (or a parole or probation offense code,) process a protest action to stop suspension of benefits according to GN 02613.450.
Title XVI - For cases pending a felony suspension action in a field office, per the policy above, only suspend payments if the offense code on the warrant is 4901, 4902,4999. No change is required for probation and parole violation suspension actions.
D. Good Cause Requests Continue to process good cause requests for any felony suspension or denial determinations following current instructions in GN 02613.025 and SI 00530.015.
If good cause cannot be approved, and the suspension/nonpayment/denial was based on a felony warrant with an offense code other than 4901,4902, or 4999, include the beneficiary or recipient on the FO list of Martinez contacts as indicated above.
Further Instructions and Additional Questions Additional Martinez settlement processing instructions will be issued in the future.
Direct all program related and technical questions to your RO or PC support staff. RO and PC support staff may refer questions or problems to their Central Office contacts.
References:
.5J 00530.000 Fugitive Felons and Parole and Probation Violators
GN~0261 ~J1QQ Title II Fugitive Felons and Parole and Probation Violators VI3Q~QJQJ,_QOO General Information on Special Veterans Benefits GN 00504.1QZ Representative Payees Identified by the Fugitive Felon Match
U'\-·08D25 Fugitive Felon: Stop Suspension or Denial of Individuals with Felony Warrants Affected by the t"lartinez S(mlement·· 1)4/01!2000
Privacy Policy I Website Policies & Other Important Information
https:/lsecure.ssa.gov/apps10/public/reference.nsf/8b709aba3e20aOdd852574da ... 7/21/2009

Case4:08-cv-04735-CW Document143-1 Filed07/21/09 Page31 of 32
Exhibit C

PolicyNetiClnasstreu4c:t0io8n-scvU-0p4d7a3te5s-/CEWM-09D0o2c4u:mSeunstp1e4n3s-i1on oFfilReedp0r7e/s2e1n/0ta9tivePaPgaey3e2e/o. .f. 3P2age 1 of 1

Policy Instruction
Previous I Next

Identification Number EM-09024

Effective Date: 03/31/2009

All

Intended Audience: RCs/ARCs/AOs/FOsITSCs/PSCs/OCOIOCO-

CSTs/OOARHQ/ALJs

Originating Office: OROP OISP

Title:

Suspension of Representative Payee/Fugitive Felon Match ProcessManualized instructions will follow shortly

Type:

EM - Emergency Messages

Program:

Title II (RSI); Title VIII (SVB); Title XVI (SSI)

Link To Reference: See references at the bottom of the EM.

Retention Date: September 30, 2009

Effective immediately, do not initiate actions to replace payees identified by the Rep Payee/ Fugitive Felon match process as described in GN 00504.102. That is, if advance notice to the payee has not yet been sent, take no action on the alert at this time.
If advance notice to the payee has already been sent out, complete your action to replace the payee as reflected in GN 00504.102C-F.
These instructions are temporary and are being issued due to a proposed settlement agreement in Martinez et al. v. Astrue. You will be provided with additional instructions shortly.
Direct all program related and technical questions to your RO or PC support staff. RO and PC support staff may refer questions or problems to their Central Office contacts.
References:
GN 00504.102 - Representative Payees Identified by the Fugitive Felon Match MSOM RPS 001.014 - RPS/Fugitive Felon Interface Alert
Suspension of ;~epresentative Payee/Fugitive Felon Match Process-Manualized instructions will follow shortly
Privacy Policy I Website Policies & Other Important Information

https:/Isecure.ssa.gov/apps1 O/public/reference. nsf/8b709aba3e20aOdd852574da... 7/21/2009

Case4:08-cv-04735-CW Document143-2 Filed07/21/09 Page1 of 4
Exhibit 2

Case4:08-cv-04735-CW Document143-2 Filed07/21/09 Page2 of 4

This notice contains important information if your Social Security retirement, survivors, or disability insurance benefits, Special Veterans Benefits (SVB), or Supplemental Security Income (SSI) payments have been suspended or denied, or if you have not been permitted to serve as a representative payee to beneficiaries of those programs on the ground that you were "fleeing to avoid prosecution or custody or confinement after a conviction" for a felony.
A court has preliminarily approved a settlement of a class action lawsuit on this issue. The case, called Martinez v. Astrue, is pending in federal district court in Oakland, California.
The Court has set a fairness hearing to consider a proposed settlement of the claims that have been brought on your behalf in this lawsuit. The hearing is scheduled to be held on September 24,2009 at 2:00 p.m. at the following address:
Honorable Claudia Wilken Courtroom 2 United States District Court of Northern California 1301 Clay St. Oakland, CA 94612
Because the date and time of that hearing may change, please check with the Court prior to attending the hearing.
The settlement in this case does not concern people whose benefits may have been suspended or denied because of a warrant based on a violation of probation or parole.
This class action settlement could affect your rights. Please read below for more information, or call the National Senior Citizens Law Center 510-663-1055 ext. 301.
This notice has three purposes: 1) to tell you about the proposed settlement and the fairness hearing; 2) to tell you how to obtain more information, including a copy of the full proposed settlement agreement; and 3) to explain how you may object to the proposed settlement if you disagree with it.

Plaintiffs claimed that the Social Security Administration (SSA) should not suspend or deny SSI, SVB, or Social Security benefits or payments, or refuse to allow people to serve as representative payees, solely on the basis of an outstanding felony arrest warrant. The parties have reached a tentative settlement that the Court has preliminarily approved. The sections below explain some of the key provisions of the tentative settlement.

You may be a Settlement Class Member if your SSI, SVB, or Old Age, Survivors, and Disability Insurance (OASDI) benefits have been suspended or denied, or you are threatened with the suspension or denial of these benefits, based on an outstanding felony

8396094.1

- 1-

Case4:08-cv-04735-CW Document143-2 Filed07/21/09 Page3 of 4
arrest warrant. If you were not pennitted to serve as a representative payee for this same reason, you may also be in the Settlement Class.
The Settlement Class does not include people who have already received a final federal court decision in an individual action regarding SSA's fugitive felon policy.
THIS IS A SUMMARY OF THE PROPOSED AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. The following description summarizes the key points in the proposed settlement agreement. You can read the entire proposed settlement agreement at SSA's website, at [www.socialsecurity.gov/---) and on the website ofthe National Senior Citizens Law Center at [www.nsclc.org/--).
Aprill, 2009 Change in SSA Policy. Effective April 1, 2009, SSA changed its policy. SSA will suspend or deny benefits based on outstanding felony arrest warrants for only the crimes of flight to avoid prosecution or confinement, escape from custody, and flightescape. SSA will also apply the new policy when it considers a person's request to serve as a representative payee. SSA may still use warrant infonnation when it decides whether or not a person is suitable to serve as a representative payee.
Benefits for "Post-2006" Settlement Class Members. For Settlement Class Members whose benefits were suspended or denied on or after January 1, 2007, or who had administrative claims challenging the suspension of their benefits pending on August 11, 2008, SSA will reinstate benefits and pay benefits that it withheld back to the first month ofthe Class Member's suspension. SSA will also repay any sums that it collected because it found that the Class Member had been overpaid benefits under the previous policy. SSA will also reinstate benefits for Class Members who get SSI, but it will also redetennine the Class Member's non-medical eligibility criteria under its usual policies. After it reinstates benefits or payments to Settlement Class Members, SSA may do continuing disability reviews under its usual policies. SSA will notify Post-2006 Settlement Class Members at the time it takes these actions with individual notices mailed to the address on SSA records.
Benefits for "Pre-2007" Settlement Class Members. For Settlement Class Members whose benefits were suspended or denied between January 1,2000 and December 31, 2006, and who did not have live administrative claims on August 11, 2008, SSA will stop collecting overpayments and will remove any remaining overpayment balance based on the previous policy. SSA will notify Pre-2007 Settlement Class Members of the settlement by a mailing to the address in SSA's records. For Class Members who were not receiving benefits as of April 1, 2009, the notice will advise that they may file a new application for benefits. If they do so within six months from the date of their notices, SSA will use an application date of April 1, 2009 as the protective filing date in reviewing the claim.
Class Members whose benefits were suspended or denied prior to January 1, 2000 may reapply under the new policy, but will not receive a mailed notice or a protective filing date.
Release of Claims. Class Members will agree to release all claims relating to the subject matter ofthis case that could have been asserted in the Martinez complaint against SSA.

8396094.1

-2-

Case4:08-cv-04735-CW Document143-2 Filed07/21/09 Page4 of 4

The Court must first finally approve the settlement. After final approval, SSA will begin steps to fulfill the terms of the settlement. Due to the size and complexity of the settlement, SSA requires some time to complete the terms. Currently, SSA plans to provide relief in phases, which are expected to conclude at the end of2010. This timeframe is subject to change.
Do not contact SSA about reinstatement of benefits or overpayment relief provided by this settlement. SSA will notify individuals affected by the settlement after final court approval.

IF YOU AGREE with the proposed settlement, you do not need to do anything at this time. If you wish to attend, you may be present at the public hearing on the proposed settlement as stated above.
IF YOU DISAGREE with the proposed settlement, you have a right to object to it. Your objections will be considered by the Court as it reviews the settlement ONLY IF you follow these procedures. You must submit objections in writing to the Court at the address above. Your objections must be received by September 10, 2009.
ALL OBJECTIONS MUST CONTAIN THE FOLLOWING INFORMATION:
a) Name, address, and telephone number of the person filing the objection. b) A statement 0 f the reasons for the 0 bjection. c) A statement that copies of the objections have also been sent to the
attorneys listed at the end of this notice.
Because this is a mandatory class under Federal Rule of Civil Procedure 23(b)(2), individual Settlement Class Members cannot exclude themselves from the Settlement Class.
If you have any questions about the lawsuit or the tentative settlement, please call the National Senior Citizens Law Center 510-663-1055 ext. 301.

For the Plaintiffs:
Gerald A. McIntyre National Senior Citizens Law Center 3435 Wilshire Boulevard, Suite 2860 Los Angeles, CA 90010-1938 Telephone: (213) 674-2900 Fax: (213) 639-0934

For the Defendant:
Victoria R. Carradero Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102-3495 Telephone: (415) 436-7000 Fax: (415) 436-6748

8396094.1

-3 -

 
 Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 1 of 16

1 DAVID H. FRY (SBN 189276) David.Fry@mto.com
2 MARK R. CONRAD (SBN 255667)
Mark.Conrad@mto.com 3 JEREMY S. KROGER (SBN 258956)
Jeremy.Kroger@mto.com 4 MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor 5 San Francisco, CA 94105-2907
T: (415) 512-4000/ F: (415) 512-4077
6
GERALD A. McINTYRE (SBN 181746) 7 gmcintyre@nsclc.org
NATIONAL SENIOR CITIZENS LAW CENTER 8 3435 Wilshire Blvd., Suite 2860
Los Angeles, CA 90010-1938 9 T: (213) 674-2900/ F: (213) 639-0934

10 ANNA RICH (SBN 230195) arich@nsclc.org
11 KEVIN PRINDIVILLE (SBN 235835) kprindi ville@nsclc.org
12 NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525
13 Oakland, CA 94612 T: (510) 663-1055 / F: (510) 663-1051
14 Attorneys for Plaintiffs
15 ADDITIONAL COUNSEL LISTED ON NEXT PAGE

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20 ROSA MARTINEZ, JIMMY HOWARD,
ROBERTA DOBBS, BRENT 21 RODERICK, SHARON ROZIER, and
JOSEPH SUTRYNOWICZ, on behalf of 22 themselves and all others similarly situated,

23

Plaintiffs,

24

vs.

25 MICHAEL J. ASTRUE, Commissioner of Social Security, in his official capacity,
26 Defendant.
27

CASE NO. 08-CV-4735 CW
PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF THE LEGALITY OF DEFENDANT'S POLICY REGARDING "FLEEING" BENEFICIARIES; MEMORANDUM OF LAW IN SUPPORT THEREOF

28
6745775.7

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 2 of 16

1 WILLIAM G. LIENHARD wlienhard@urbanjustice.org
2 EMILIA SICILIA esicilia@urbanjustice.org
3 JENNIFER PARISH jparish@urbanjustice.org
4 URBAN JUSTICE CENTER 123 William Street, 16th FI.
5 New York, NY 10038 T: (646) 602-5668 / F: (212) 533-4598
6 CHRISTOPHER A. DOUGLAS (SBN 239556)
7 cdouglas@legalaidsmc.org M. STACEY HAWVER (SBN 146012)
8 mshawver@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
9 521 East 5th Avenue San Mateo, CA 94402
10 T: (650) 558-0915/ F: (650) 558-0673
11 MARILYN HOLLE (SBN 61530) marilyn.holle@disabilityrightsca.org
12 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd. Suite 902
13 Los Angeles, CA 90010-2522 T: (213) 427-8747 / F: (213) 427-8767
14
15 Of Counsel for Plaintiffs ROSA MARTINEZ, JIMMY HOWARD, ROBERTA DOBBS, BRENT
16 RODERICK, SHARON ROZIER, JOSEPH SUTRYNOWICZ, and all others similarly situated
17
18
19
20
21
22
23
24
25
26
27
28
6745775.7

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV -4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 3 of 16

NOTICE OF MOTION AND MOTION

2

TO THE COURT, ALL PARTIES AND COUNSEL OF RECORD:

3

PLEASE TAKE NOTICE that on February 19, 2009, at 2:00 p.m., before the Honorable

4 Claudia Wilken, at the United States Courthouse at 1301 Clay Street, Oakland, California 94612,

5 Plaintiffs will and hereby do move for summary adjudication and for an order determining that

6 Defendant's policy of suspending or denying benefits, and decertifying or denying certification,

7 to otherwise eligible beneficiaries and representative payees of Old Age, Survivors, and

8 Disability Insurance ("OASDI"), Supplemental Security Income ("SSI"), and Special Veterans

9 Benefits ("SVB"), is unlawful and contrary to both the statutory requirements set forth in 42

10 U.S.C. §§ 402(x)(I)(A)(iv), 1004(a)(2), 1382(e)(4)(A) and the implementing regulations codified

11 in 20 C.F.R. §§ 416.1339(b)(i)(A)-(B), 408.81O(b).

12

This Motion is made pursuant to Rules 56(a) and (d) of the Federal Rules of Civil

13 Procedure and Civil Local Rule 56-1. The Motion is based upon this Notice of Motion, the

14 attached Memorandum of Points and Authorities, the declaration of Gerald A. McIntyre filed

15 herewith, and such additional argument as may be presented in Plaintiffs' reply and at any

16 hearing on this Motion.

17

18 DATED~ January 15, 2009 19

Respectfully submitted,

20

21

By: lsi David H Fry

DAVIDH. FRY 22

Attorneys for Plaintiffs 23

24

25

26

27

28
6745775.7

- 1-

MEMO. OF P&A ISO PLAINTIFFS ' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 4 of 16

1

TABLE OF CONTENTS

2
3 I. 4 II. 5 6 7 8 9 10 11
III. 12 13 14 15 16 17 18 IV. 19

Page
INTRODUCTION ............................................................................................................... 1
STATEMENT OF FACTS ..................................................................................................2
A. The SSA's Governing Statutes Authorize the SSA to Deny or Suspend Benefits When a Beneficiary Is "Fleeing to Avoid Prosecution." ...........................2
B. The SSA's Implementing Regulations Require an "Appropriate Finding" That A Beneficiary "Is Fleeing, or Has Fled, to Avoid Prosecution." ....................2
C. The SSA's Internal Guidelines Directing Agency Employees To Deny and Suspend Benefits Based Solely on the Existence of an Outstanding Warrant. ................................................................................................................... 3
D. Except in the Second Circuit, Where Its Policy Has Been Declared Unlawful, the SSA Considers a Beneficiary To Be "Fleeing" Even When Unaware that Criminal Charges Have Been Filed...................................................4
ARGUMENT ....................................................................................................................... 5
A. Summary Judgment Is Appropriate Where the Undisputed Facts Regarding a Published Government Policy Establish Its Invalidity.........................................5
B. It Is Undisputed That the SSA Denies and Suspends Benefits Without First Making the Requisite Finding That the Beneficiary or Representative Payee Had a Specific Intent To Flee To Avoid Prosecution, Custody, or Confinement. ............................................................................................................ 5
C. Individual Circumstances of Beneficiaries and Representative Payees Are Immaterial To This Court's Determination That the SSA's Policy Is Illegal and Do Not Preclude Summary Adjudication......................................................... 8
CONCLUSION.................................................................................................................. 10

20

21

22

23

24

25

26

27

28
6745775.7

- 1-

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4 735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 5 of 16

1

TABLE OF AUTHORITIES

2

Page(s)

3

FEDERAL CASES

4

Anderson v. Liberty Lobby, Inc.,

5

477 V.S. 242 (1986) ............................................................................................................. 5, 10

6

Blakely v. Comm 'r Soc. Sec., 330 F. Supp. 2d 910 (W.D. Mich. 2004) ................................................................................... 1

7 Bowen v. City ofNew York,

476 V.S. 476 (1986) ... .. .............................................................................................................. 9

8 Caldwell v. Astrue,

9

2008 WL 2713714 (E.D. Tenn. July 10,2008) ..................................................................... 1,6

Celotex Corp. v. Catrett,

10

477 V. S. 3 17 (1986) ............................................................................................................. 5, 10

11

Eisenberg v. Ins. Co. ofN. Am., 815 F.2d 1285 (9th Cir. 1987) ......... """'" ................................................................................. 5

12 Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005) ............................................................................................ 1,4, 6, 8

13 Garnes v. Barnhart,

352 F. Supp. 2d 1059 (N.D. Cal. 2004) ......................................................................... 1,6, 7, 8 14

Hull v. Barnhart,

15

336 F. Supp. 2d 1113 (D. Or. 2004) .................................................................................. 1, 6, 7

16

Johnson v. Shalala, 2 F.3d 918 (9th Cir. 1993) ................................................. .. ............................ ................ 5, 9, 10

17 Kildare v. Saenz,

325 F.3d 1078 (9th Cir. 2003) ...................................................................................................9

18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

19

475 V.S. 574 (1986) ............................................................................................................. 5, 10

Reffv. Astrue,

20

2008 WL 4277713 (D. Minn. Sept. 15,2008) ....................................................................... 1,6

21

Thomas v. Barnhart, 2004 WL 1529280 (D. Me. June 24, 2004) ........................................................................... 1,6

22 United States v. Murguia-Oliveros,
421 F.3d 951 (9th Cir. 2005) ..................................................................................................... 8
23

24

FEDERAL STATUTES

25 18 V .S.C. § 3290.............................................................................................................................. 8

26 42 V.S.C. § 402(x)(1 )(A)(iv) ............................................................................................. 2, 5, 7, 10
42 V. S.C. § 1004(a)(2)...................................................................... ............................... .. 2, 5, 7, 10
27 42 V. S.C. § 1382(e) .........................................................................................................................2

28 42 V.S.C. § 1382(e)(4)(A) .................................................................................................2, 5, 7, 10

6745775.7

- 11 -

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 6 of 16

1

TABLE OF AUTHORITIES

(continued)

2

Page(s)

3 42 U.S.C. § 1382(e)(4)(A)(i) ...........................................................................................................2

4 Pub. L. No.1 04-193 .........................................................................................................................2

5

FEDERAL RULES

6 Fed.R.Civ.P. 56 .......................................................................................................................... 5, 10

7

8

FEDERAL REGULATIONS

9 20 C.F.R. § 408.810(b) ...................................................................................................... 3, 5, 8, 10 20 C.F.R. § 416.1339(b) .............................................................................................................. 3,5
10 20 C.F.R. § 416. 1339(b)(i)(A)-(B) ............................................................................................ 8, 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
6745775.7

- iii -

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 7 of 16

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

The Social Security Administration ("SSA") has adopted a blanket policy of denying or

4 suspending federal benefits to qualified beneficiaries, and of decertifying or refusing to certify

5 qualified representative payees, whenever the agency believes that such individuals are subject to

6 a felony arrest warrant. This policy is unlawful. It is contrary to both the governing federal

7 statutes and the agency's own implementing regulations, which require such decisions to be made

8 not merely on the basis of an outstanding warrant, but on a specific finding that the beneficiary or

9 representative payee is "fleeing" with the specific intent to avoid prosecution, custody, or

10 confinement for a felony. Pursuant to this policy, the SSA has unlawfully denied benefits to, or

11 suspended the benefits of, thousands of otherwise eligible beneficiaries and representative payees

12 of Old Age, Survivors, and Disability Insurance ("OASDI"), Supplemental Security Income

13 ("SSI"), and Special Veterans Benefits ("SVB") (collectively, the "Benefit Programs").

14

With this motion, Plaintiffs seek a summary determination that the SSA's policy

15 pertaining to these flight-with-intent provisions is unlawful, a legal proposition that is well-

16 established. See, e.g., Fowlkes v. Adamec, 432 F.3d 90,96-97 (2d Cir. 2005); Reffv. Astrue, 2008

17 WL 4277713 (D. Minn. Sept. 15,2008); Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July

18 10,2008); Blakely v. Comm 'r Soc. Sec., 330 F. Supp. 2d 910 (W.D. Mich. 2004); Hull v.

19 Barnhart, 336 F. Supp. 2d 1113 (D. Or. 2004); Thomas v. Barnhart, 2004 WL 1529280 (D. Me.

20 June 24, 2004); Garnes v. Barnhart, 352 F. Supp. 2d 1059 (N.D. Cal. 2004). Plaintiffs do not ask

21 the Court to determine whether any single individual is eligible for benefits. Instead, Plaintiffs

22 ask this Court to hold, in accord with the numerous federal courts that have considered the issue,

23 that the SSA cannot deny or suspend benefits, or decertify or refuse to certify representative

24 payees, based solely on the existence of an outstanding arrest warrant. Because such a

25 determination rests on the existence and undisputed terms of the SSA's internal policies and

26 procedures, summary adjudication on this issue is warranted and would allow this case to proceed

27 most efficiently.

28
6745775.7

- 1-

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CY-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 8 of 16

1 II. STATEMENT OF FACTS

2

A. The SSA's Governing Statutes Authorize the SSA to Deny or Suspend

3

Benefits When a Beneficiary Is "Fleeing to Avoid Prosecution."

Under several substantially identical statutes and regulations, federal law renders 4

ineligible for the Benefit Programs those persons who are "fleeing to avoid prosecution, or 5

custody or confinement after conviction," for a felony. 42 U.S.c. §§ 402(x)(I)(A)(iv), 6

1004(a)(2), 1382(e)(4)(A). For instance, effective August 22, 1996, the Personal Responsibility 7

and Work Opportunity Reconciliation Act ("PRWORA"), Pub. L. No. 104-193, amended the 8

Social Security Act ("the Act") by adding a provision authorizing the SSA to suspend or deny SSI 9

benefits to individuals fleeing to avoid prosecution, custody, or confinement for a felony. The 10

PRWORA provides, in relevant part: 11

12

(4)(A) No person shall be considered an eligible individual or eligible spouse for purposes of this subchapter with respect to any

13

month if during such month the person is -

14

(i) fleeing to avoid prosecution, or custody or confinement after conviction, under the law of the place from which the person flees,

15

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 ....

16 42 U.S.C. § 1382(e). Likewise, in 1999, when authorizing the SVB program to provide benefits

17 to certain World War II veterans residing outside of the United States, Congress extended the

18 Act's flight-with-intent eligibility restrictions of 42 U.S.C. § 1382(e)(4)(A)(i) to the SVB

19 program. 42 U.S.C. § 1004(a)(2). Six years later, in 2005, Congress extended these same

20 restrictions to OASDI as well. 42 U.S.C. § 402(x)(1)(A)(iv).

21

B. The SSA's Implementing Regulations Require an "Appropriate Finding"

22

That A Beneficiary "Is Fleeing, or Has Fled, to Avoid Prosecution."

23

The SSA has issued two sets of regulations implementing these various flight-with-intent

24 statutory provisions. First, in 2000, the SSA issued regulations regarding the SSI program.

25 These regulations provide in relevant part:

26

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

fugitive ... is effective with the first day of whichever of the

27

following months is earlier -

28
6745775.7

-2 -

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CY -4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 9 of 16

1

(i) The month in which a warrant or order for the

individual's arrest or apprehension, an order requiring the

2

individual's appearance before a court or other appropriate

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

3

court or other duly authorized tribunal on the basis ofan

appropriate finding that the individual-

4

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

5

described in paragraph (a)(l) of this section;

6

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

confinement after conviction as described in

7

paragraph (a)(2) of this section;

8 20 C.F.R. § 416.1339(b) (emphasis added). In 2003, the SSA issued largely identical regulations

9 applicable to the SVB program. 20 C.F.R. § 408.81O(b).

10

c. The SSA's Internal Guidelines Directing Agency Employees To Deny and

Suspend Benefits Based Solely on the Existence of an Outstanding Warrant. 11

Notwithstanding the governing statutes and implementing regulations described above, 12

the SSA has issued internal policy guidelines, under which the agency's employees deny and 13

suspend payments under the Benefits Programs based solely on the existence of an "unsatisfied 14

warrant" against a beneficiary or representative payee. For example, with respect to the 15
PRWORA, the SSA's guidelines on the SSI program's "ineligibility criteria" state: 16

An individual is ineligible to receive SSI benefits for any month

17

during which he/she

18

Has an unsatisfied warrant for hislher arrest for a crime, or

attempt to commit a crime, that is a felony .... 19

McIntyre Decl. Ex. A (SSA Program Operations Manual System Section SI 00530.001). The

20

SSA has issued substantially similar guidelines in the context ofOASDI. McIntire Decl. Ex. B

21

(SSA Program Operations Manual System Section GN 02613.001).
22

These criteria do not require that the beneficiary or representative payee be "fleeing"

23

prosecution - the agency's internal guidelines describing the eligibility criteria, which at one 24

point tracked the statutory criteria, were actually amended to omit the word "fleeing" altogether.

25

Compare McIntire Decl. Ex. C to Ex. A. Nor do these "ineligibility criteria" require a judicial 26

finding that the person in question be "fleeing." In fact, the agency has issued an additional

27

policy guideline concerning the timing of when applicants become ineligible, which specifically 28

6745775.7

-3 -

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 10 of 16

1 provides that "[t]he warrant does not have to state that the individual is 'fleeing' for the

2 suspension to apply." McIntyre Decl. Ex. D (SSA Program Operations Manual System Section

3 SI00530.01O).

4

D. Except in the Second Circuit, Where Its Policy Has Been Declared Unlawful,

5

the SSA Considers a Beneficiary To Be "Fleeing" Even When Unaware that Criminal Charges Have Been Filed.

6

The United States Court of Appeals for the Second Circuit ruled in December 2005 that

7 the "the plain language of the statute and its implementing regulation" preclude the SSA from

8 determining that a person is "fleeing to avoid prosecution" based solely on the fact that there is an

9 outstanding warrant for a person's arrest. Fowlkes, 432 F.3d at 96. The Second Circuit held that,

10 instead, there must be a "conscious evasion of arrest or prosecution." Id. It held that "benefits

11 may be suspended only as of the date of a warrant or order issued by a court or other authorized

12 tribunal on the basis ofa finding that an individual has fled or was fleeing from justice" and that a

13 person's flight must be "undertaken with a specific intent, i.e., to avoid prosecution." Id. at 96-97

14 (emphasis added).

15

In response to that decision, the SSA issued an "Acquiescence Ruling." See McIntyre

16 Decl. Ex E. In that ruling, the SSA stated that it would follow the Second Circuit's ruling in

17 Fowlkes as to all beneficiaries and representative payees "who live in Connecticut, New York, or

18 Vermont." Id. at 1. As to all others, the SSA stated that, for purposes of eligibility under the

19 Benefits Program, a person will continue to be deemed "fleeing" prosecution or confinement even

20 when they are unaware that they are being sought by authorities. Id. at 2. ("We interpret [the

21 Act] to mean that a person is 'fleeing to avoid prosecution, custody, or confinement' when a

22 person has an outst~ding warrant for his or her arrest, even ifthat person is unaware o/that

23 warrant." (emphasis added)).

24 II

25 II

26 II

27

28
6745775.7

-4-

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 11 of 16

1 III. ARGUMENT

2

A. Summary Judgment Is Appropriate Where the Undisputed Facts Regarding

3

a Published Government Policy Establish Its Invalidity.

Summary adjudication is properly granted when no genuine and disputed issues of 4

material fact remain, and when, viewing the evidence most favorably to the non-moving party, 5

the movant is entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 6

477 U.S. 317, 322 (1986); Eisenbergv. Ins. Co. olN Am., 815 F.2d 1285, 1288 (9th Cir. 1987); 7

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 8

The applicable substantive law determines which facts are material to the case; material 9

facts that preclude summary adjudication are those that, under applicable substantive law, would 10
affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). In a 11

challenge such as this one, where Plaintiffs contest not a factual determination regarding an 12

individual's eligibility for benefits, but rather the collateral issue of the validity of a published 13

government policy, any facts pertaining to the individual beneficiaries are immaterial and 14

summary adjudication is appropriate based on the undisputed operation of the policy. See, e.g., 15

Johnson v. Shalala, 2 F.3d 918, 922 (9th Cir. 1993). 16

17

B. It Is Undisputed That the SSA Denies and Suspends Benefits Without First

Making the Requisite Finding That the Beneficiary or Representative Payee

18

Had a Specific Intent To Flee To Avoid Prosecution, Custody, or

Confinement.
19 The SSA's policy of finding otherwise-qualified SSI, OASDI, and SVB beneficiaries and

20 representative payees ineligible based on the mere existence of a warrant, without a finding that

21 the person is fleeing prosecution or custody or confinement after conviction for a felony,

22
contradicts the clear language of the statutes and the relevant implementing regulations. The

23 plain language of each of the relevant tlight-with-intent statutes requires a finding, prior to the

24 suspension or denial of benefits, that an individual is "fleeing" with the specific intent "to avoid

25 prosecution, or custody or confinement." 42 U.S.C. §§ 402(x)(1 )(A)(iv), 1004(a)(2),

26 1382(e)(4)(A). The relevant regulations require, furthermore, that that finding be made "by a

27 court or other duly authorized tribunal." 20 C.F.R. §§ 408.810(b), 416.1339(b).

28

6745775.7

-5-

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 12 of 16

1

It is no surprise, therefore, that federal courts have repeatedly rejected the SSA's attempts

2 to suspend benefits based on its internal guidelines, which do not require any finding (by a court

3 or anyone ~lse) that the beneficiary is "fleeing." Fowlkes, 432 F.3d at 96-97; Ref!, 2008 WL

4 4277713, at *7; Caldwell, 2008 WL 2713714, at *4 Hull, 336 F. Supp. 2d at 1116-17; Thomas,

5 2004 WL 1529280, at *4; Garnes, 352 F. Supp. 2d at 1066. In Fowlkes, for example, the Second

6 Circuit expressly held that the SSI statute "does not permit the Commissioner to conclude simply

7 from the fact that there is an outstanding warrant for a person's arrest that he is 'fleeing to avoid

8 prosecution. '" Id The Fowlkes court held, moreover, that the regulations permit the agency to

9 suspend benefits only after a court or other authorized tribunal has made the required finding:

10 "[T]he regulation does not permit the agency to make a finding of flight; rather, it demands a

11 court or other appropriate tribunal to have issued a warrant or order based on a finding of flight."

12 Id at 97 (emphasis in original). The Second Circuit based these rulings on the plain language of

13 the SSI statute and accompanying regulations, noting that the court "need not afford any

14 deference to the [SSA's construction] here, because the plain language of the statute and its 15 implementing regulation do not permit th[at] construction ...." Id at 96. 1

16

Hull v. Barnhart is to the same effect. In that case, the plaintiff moved from Nevada to

17 Oregon several months before criminal charges were filed against her in Nevada. While the

18 charges were pending, she obtained an Oregon drivers license and lived at the same address for

19 four years, then lived at another address for a further three years. Hull, 336 F. Supp. 2d at 1115.

20 She had not changed her name or done anything else to avoid law enforcement. Id In fact, she

21 remained unaware of the charges until the SSA sought to suspend her SSI benefits. Id She was

22 eventually arrested at her home and she waived extradition, but Nevada did not bother to take her

23

24 I See also Garnes, 352 F. Supp. 2d at 1067 ("The court agrees that the plain language of[the regulation] requires more than the existence of a warrant. It requires a finding by a court or other
25 duly authorized tribunal ... 'that the individual is fleeing, or has fled, to avoid prosecution. "'); Hull, 336 F. Supp. at 1116-17 ("The Commissioner argues that if a warrant is issued, the person is
26 a fleeing felon under the statute and remains so until the warrant is resolved. This is not what the regulation provides. It requires a court finding that the person is fleeing.... This is the only way
27 to give meaning to all parts of the regulation." (emphasis added)); Thomas, 2004 WL 1529280, at *4 ("[T]he commissioner's interpretation of the statute ... is unreasonable to the extent that it
28 presumes that the statute applies merely from the existence of an arrest warrant.").

6745775.7

- 6-

MEMO. OF P&A [SO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 13 of 16

into custody and the Oregon authorities subsequently released her. Id. The court found that the

2 SSA had improperly suspended her benefits because there was no evidence that the court issuing

3 the warrant had made a finding that the plaintiff was fleeing prosecution and, in any event, the

4 evidence was insufficient to support the SSA's finding that the plaintiff was, in fact, fleeing. Id.

5 at 1117.

6

Similarly, here in the Northern District, Chief Judge Walker reversed the SSA's

7 suspension of benefits to an SSI beneficiary suffering from the combined effects of a

8 developmental disability and mental illness. Garnes, 352 F. Supp. 2d at 1066. The plaintiff had

9 been arrested in Virginia for failure to return a rental car on time. Id. at 1060. She had been

10 released on her own recognizance and agreed to appear in court a few days later. Id. Due to a

11 fire and resulting asbestos contamination, the court was closed on the date the plaintiff had been

12 scheduled to appear. Id. A few weeks later, the plaintiffs mother - with whom plaintiff lived

13 - relocated from Virginia to California. Id. Unable to live on her own, plaintiff had moved with

14 her mother to California. Id. at 1060-61. A warrant issued when she had subsequently failed to

15 appear in court in Virginia. Id. at 1061. She was later arrested in California based on the

16 outstanding warrant, but Virginia chose not to extradite her. Id. More than eleven years later,

17 SSA suspended her SSI benefits on the basis of the warrant. Id. Although an Administrative Law

18 Judge ("ALJ") found the suspension to be improper because there was no intent to flee, the ALJ's

19 decision was reversed by the Appeals Council, which essentially concluded that intent was not

20 required. Id. at 1062. Chief Judge Walker squarely rejected the SSA's contention that a finding

21 of intent was unnecessary in order to suspend benefits under the statute: "SSA's contention that

22 there is, in effect, no intent requirement for an individual to be found to be 'fleeing' is

23 insupportable." Id. at 1065.

24

As these and other courts have held, the plain language of these statutes sets forth an intent

25 requirement, namely, that the individual not only be "fleeing," but that the specific purpose of

26 that "flight" be the avoidance of "prosecution, or custody or confinement after conviction" for a

27 felony. 42 U.S.c. §§ 402(x)(l)(A)(iv), I004(a)(2), 1382(e)(4)(A). The statutes' "use of the

28 words 'to avoid prosecution' confirms that for 'flight' to result in a suspension of benefits, it must

6745775.7

-7-

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA ' s POLICY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 14 of 16

1 be undertaken with a specific intent, i.e., to avoid prosecution." Fowlkes v. Adamec, 432 F.3d 90,

2 96-97 (2d Cir. 2005); see also Garnes v. Barnhart, 352 F. Supp. 2d 1059, 1066 (N.D. Cal. 2004)

3 ("[T]he concept of 'fleeing' contain[s] an intent requirement."). This interpretation is supported

4 by the relevant regulations, which require a court "finding that the individual ... [i]s fleeing, or

5 has fled, to avoid" prosecution or confinement. 20 C.F.R. § 416. 1339(b)(i)(A)-(B); 20 C.F.R. §

6 408.81O(b); accord United States v. Murguia-Oliveros, 421 F.3d 951,954 (9th Cir. 2005)

7 (holding that, in the context of 18 U.S.C. § 3290, the term "fleeing" demands that the defendant

8 "concealed himself or herself with an intent to avoid prosecution").

9

Despite the clear language of the statute and its own regulations, and despite the consistent

10 judicial interpretations thereof, the SSA has persisted with its policy of denying and suspending

11 benefits for every person who it believes has a felony warrant outstanding against him or her -

12 without regard to whether the court issuing the warrant made any finding that the person was

13 fleeing prosecution and, indeed, without regard to whether, in fact, the person ever intended to

14 flee prosecution, or even has the necessary mental capacity and/or mental state to form such an

15 intent. Garnes, 352 F. Supp. 2d at 1066. Thus, contrary to the plain language of the governing

16 statute and regulations, the SSA's policy requires neither action nor any particular mental state.

17 The SSA even contends that a person can be "fleeing to avoid prosecution" without knowing it,

18 i.e., even ifhe or she does not know that criminal charges are pending or likely. McIntyre Decl.

19 Ex. Eat 2. The federal courts have repeatedly found this internal policy to be contrary to the

20 plain language of the statute and regulations and, therefore, not entitled to deference and

21 unlawful. Fowlkes, 432 F.3d at 96-97; Garnes, 352 F. Supp. 2d at 1065-66. This Court should

22 do so as well.

23

c. Individual Circumstances of Beneficiaries and Representative Payees Are

24

Immaterial To This Court's Determination That the SSA's Policy Is Illegal and Do Not Preclude Summary Adjudication.

25

The SSA has a set policy, written into its employee manual, concerning the application of

26 the flight-with-intent provisions. The material facts regarding the existence and operation of this

27 policy are not in dispute. Because this motion seeks a determination only as to the validity of this

28

6745775.7

-8-

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4 735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 15 of 16

written policy, on behalf of class members affected by it, the circumstances of any individual

2 beneficiary or representative payee - including the question of whether such individuals may fall

3 within the scope of the flight-with-intent provisions, as lawfully applied - are irrelevant to the

4 question presented in this motion. Therefore, for purposes of this motion for summary

5 adjudication, there are no material facts in dispute that might preclude summary adjudication of

6 the legality of the SSA's policy.

7

As described in Plaintiffs' motion for a preliminary injunction, this case involves not a

8 "claim for benefits," but rather an assertion by Plaintiffs that a "systemwide ... policy ... [is]

9 inconsistent in critically important ways with established regulations." Bowen v. City a/New

10 York, 476 U.S. 476,485 (1986). As such, Plaintiffs' claims are entirely "collateral" to a claim for

11 benefits because they "challenge[] the [SSA's] failure to follow the applicable regulations."

12 Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993); see also Kildare v. Saenz, 325 F.3d 1078,

13 1082-83 (9th Cir. 2003) (holding that claims are collateral where they "challenge[] specific ...

14 policies that conflict[] with established law"). This lawsuit does not concern individual benefit

15 determinations; rather, it simply seeks to force the SSA to make those determinations in

16 accordance with the applicable statutes and its own regulations.

17

There can be no dispute about the ways in which the SSA's policy deviates from the

18 governing statutes and regulations. The SSA's own published operating manual establishes that

19 the agency makes benefits determinations without first establishing that the beneficiary or

20 representative payee was actually fleeing. McIntyre Decl. Exs. A & B. The SSA's published

21 policies further establish that the agency denies or suspends benefits, and decertifies or denies

22 certification to, otherwise eligible beneficiaries and representative payees on the basis of

23 "unsatisfied warrants" alone, without making any determination about whether the individual in

24 question actually had an intent to flee prosecution or confinement. Id. In fact, the SSA's

25 published policies establish that the agency makes these determinations whether or not the

26 beneficiary or representative payee knows that he or she is the subject of an outstanding warrant

27 at all. McIntyre Decl. Ex. D. None of these aspects of the SSA's policies is disputed, and each

28 of them is sufficient to establish that the agency's actions are illegal. "We do not need a detailed

6745775.7

-9-

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLlCY;
CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 78 Filed 01/15/2009 Page 16 of 16

factual record for each claimant to decide such a straightforward statutory challenge ... because

2 the issue posed by class members is one purely of statutory construction." Johnson, 2 F.3d at 922

3 (quotations and citations omitted». Accordingly, summary judgment on the record presented

4 herein is warranted. Fed. R. Civ. P. 56; Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248;

5 Matsushita, 475 U.S. at 587.

6 IV. CONCLUSION

7

For the foregoing reasons, Plaintiffs respectfully request that the Court adjudicate

8 summarily the validity of the SSA's written policy regarding the tlight-with-intent provisions of

9 the governing statutes and implementing regulations of the Benefits Programs and issue an order

10 determining that Defendant's policy of suspending or denying benefits, and decertifying or

11 denying certification to, otherwise eligible beneficiaries and representative payees of the Benefit

12 Programs, is unlawful and contrary to both the statutory requirements set forth in 42 U.S.c. §§

13 402(x)(l)(A)(iv), 1004(a)(2), 1382(e)(4)(A) and the implementing regulations codified in

14 20 C.F.R. §§ 416. 1339(b)(i)(A)-(B), 408.81O(b).

15

16 DATED: January 15,2009 17 18

MUNGER, TOLLES & OLSON LLP DAVIDH. FRY MARK R. CONRAD JEREMY S. KROGER

19

By: lsi David H Fry

20

DAVIDH. FRY

21

22

23

24 25

26

27

28
6745775.7

- 10 -

MEMO. OF P&A ISO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE SSA's POLICY;
CASE No. 08-CV-4735 CW

CAND-ECF

rage 1 or L

Motions
4:08-cv-04735-CW Martinez et al v. Astrue ADRMOP, E-Filing

U.S. District Court Northern District of California Notice of Electronic Filing or Other Case Activity

NOTE: Please read this entire notice before calling the Help Desk. If you have questions, please email the Help Desk by replying to this message; include your question or comment along with the original text.
Please note that these Notices are sent for all cases in the system when any case activity occurs, regardless of whether the case is designated for e-filing or not, or whether the activity is the filing of an electronic document or not.
------------If there are two hyperlinks below, the first will lead to the docket and the second will lead to an e-filed document.
Ifthere is no second hyperlink, there is no electronic document available.
See the FAQ posting 'I have a Notice of Electronic Filing that was e-mailed to me but there's no hyperlink...' on the ECF home page at httJ>.s:llecf.cand.uscourts.gpv for more information.

The following transaction was received from by Fry, David entered on 1115/20093:49 PM PST and

filed on 1115/2009

Case Name:

Martinez et al v. Astrue

Case Number:

4:08-cv-4735

Filer:

Rosa Martinez

Jimmy Howard

Roberta Dobbs

Brent A. Roderick

Sharon D. Rozier

Joseph Sutrynowicz

Document Number: 78

Docket Text: MOTION for Summary Judgment Plaintiff's Notice of Motion and Motion for Summary Adjudication of the Legality of Defendant's Policy Regarding "F/eeing" Beneficiaries; Memorandum of Law In Support Thereoffiled by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. Motion Hearing set for 2/19/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Fry, David) (Filed on
1/15/2009)

https:llecf.cand.uscourts.gov/cgi-binlDispatch.pl?114741680884405

1115/2009

LANU-hLl.

nlgt: L. Ul L.

4:08-cv-4735 Notice has been electronically mailed to:
Anna Margaret Rich arich@nsc1c.org
Christopher Allen Douglas cdouglas@legalaidsmc.org
David H. Fry frydh@mto.com, jeremy.kroger@mto.com,julie.lunsford@mto.com, mark.conrad@mto.com
Gerald Andrew McIntyre GMCINTYRE@NSCLC.ORG
Kevin Edward Prindiville kprindiville@nsc1c.org
M. Stacey Hawver mshawver@legalaidsmc.org
Mark Russell Conrad Mark.Conrad@mto.com
Victoria R. Carradero victoria.carradero@usdoj.gov, bonny.wong@usdoj.gov
4:08-cv-4735 Notice has been delivered by other means to:
Emilia Sicilia Urban Justice Center 123 William Street, 16th Floor New York, NY 10038
Jennifer Parish Urban Justice Center 123 William Street, 16th Floor New York, NY 10038
Marilyn Holle Disability Rights California 3580 Wilshire Blvd., Suite 902 Los Angeles, CA 90010-2512
William G. Lienhard Urban Justice Center 123 William Street, 16th Floor New York, NY 10038
The following document(s) are associated with this transaction:
Document description:Main Document Original filename:C:\Documents and Settings\lechwarme\Desktop\Holding Folder\Motion.PDF Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=1115/2009] [FileNumber=4989444-0] [229d7bcI54674d41100ee20fI175e5c6bI2ceaOba99fcf93b8bc66Idaffea92969525 58dblla87a418d631788c047cb4e43b2773051ec156geb829b9c0551181]]

https://ecf.cand. uscourts.gov/cgi-binlDispatch.pl?114 741680884405

1115/2009

 
 Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 1 of 25

DAVID H. FRY (SBN 189276)
David.Fry@mto.com 2 MARK R. CONRAD (SBN 255667)
Mark.Conrad @ mto .c o m 3 JEREMY S. KROGER (SBN 258956)
Jeremy.Kroger@mto.com 4 MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor 5 San Francisco, CA 94105-2907
T: (415) 512-4000 / F: (415) 512-4077
6
GERALD A. McINTYRE (SBN 181746) 7 gmcintyre@nsc1c .org
NATIONAL SENIOR CITIZENS LAW CENTER 8 3435 Wilshire Blvd., Suite 2860
Los Angeles, CA 90010-1938 9 T : (213) 674-2900 / F: (213) 639-0934

10 ANNA RICH (SBN 230 195) arich @ nsc1c.org
11 KEVIN PRINDIVILLE (SBN 235835)
kprindiville@nsc1c.org 12 NATlONAL SENIOR CITIZENS LAW CENTER
1330 Broadway, Suite 525 13 Oakland, CA 94612
T: (510) 663-1055 / F: (510) 663-1051 14
Attorneys for Plaintiffs
15 ADDITIONAL COUNSEL LISTED ON NEXT PAGE

16

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

OAKLAND DIVISION

20 ROSA MARTINEZ, JIMMY HOWARD,
ROBERTA DOBBS, BRENT 21 RODERICK, SHARON ROZIER, and
JOSEPH SUTRYNOWICZ, on behalf of 22 themselves and all others similarly situated,

23

Plaintiffs,

24

vs .

25 MICHAEL J. ASTRUE, Commissioner of Social Security, in his official capacity,
26 Defendant.
27

CASE NO. 08-CV-4735 CW
PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR A PRELIMINARY INJUNCTION;
MEMORANDUM OF LAW IN SUPPORT THEREOF

28

67 17725 .8

M EMO. OF POINTS AND A UTHORITI ES ISO PLAINTI FFS'
MOTION FOR A PI ; CASE No. 08-C Y-47 35 C W

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 2 of 25

WILLIAM G. LIENHARD wlienhard @urbanjustice.org 2 EMILIA SICILIA esicilia@urbanjustice.org 3 JENNIFER PARISH jparish@urbanjustice.org 4 URBAN JUSTICE CENTER ] 23 William Street, 16th Fl. 5 New York, NY 10038 T: (646) 602-5668 / F: (212) 533-4598
6 CHRISTOPHER A. DOUGLAS (SBN 239556)
7 cdouglas@legalaidsmc.org M. STACEY HAWVER (SBN 146012)
8 mshawver@legalaidsmc.org LEGAL AID SOCIETY OF SAN MATEO COUNTY
9 521 East 5th Avenue San Mateo, CA 94402
10 T: (650) 558-0915 / F: (650) 558-0673

11 MARILYN HOLLE (SBN 61530) marilyn.holle@disabilityrightsca.org
12 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd. Suite 902
13 Los Angeles, CA 90010-2522 T: (213) 427-8747 / F: (213) 427-8767
14

15 Of Counsel for Plaintiffs ROSA MARTINEZ, JIMMY HOWARD, ROBERTA DOBBS, BRENT
16 RODERICK, SHARON ROZIER, JOSEPH SUTRYNOWICZ, and all others similarly situated
17

18

19

20

21

22

23

24

25

26

27

28

6717725.8

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. os-cv-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 3 of 25

NOTICE OF MOTION AND MOTION

2

TO THE COURT, ALL PARTIES AND COUNSEL OF RECORD:

3

PLEASE TAKE NOTICE that on February 19, 2009, at 2:00 p.m., before the Honorable

4 Claudia Wilken, at the United States Courthouse at 1301 Clay Street, Oakland, California 94612,

5 Plaintiffs will and hereby do move the Court for an order (1) preliminarily enjoining Defendant

6 from suspending or denying benefits under 42 U.S.C. §§ 402(x)(1)(A)(iv), 1004(a)(2),

7 13 82(e)(4)(A) in the absence of a finding that the individual had the intent to flee for the specific

8 purpose of avoiding prosecution, custody, or confinement for a felony; and (2) requiring

9 Defendant to vacate all suspensions or denials of benefits made since August 11, 2008 without

10 such a finding.

11

This Motion is made pursuant to the Federal Rule of Civil Procedure 65(a) and Civil Local

12 Rule 65-2. The Motion is based upon this Notice of Motion, the attached Memorandum of Points

13 and Authorities, and the declarations of Rosa Martinez, Joseph Sutrynowicz, Tannitte Shufford,

14 Sharon Rozier, Roberta Dobbs, and Jeremy S. Kroger, filed herewith.

15

16 DATED: January 12,2009 17

Respectfully submitted,

18

19

By: C2u! ~k5V

D " H. FRY

20

Attorneys for Plaintiffs 21

22

23

24

25

26

27

28

6717725.8

- 1-

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS '
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 4 of 25

1

TABLE OF CONTENTS

2
3 1. 4 II. 5 6 7 8 III. 9 10 11 12 13 14 15 16 17 IV. 18

Page

INTRODUCTION .............................................................................................................. 2

STATEMENT OF FACTS ................................................................................................. 3

A. The Relevant Statutes and Regulations................................................................... 3
B. The SSA's Published Internal Policy Guidelines Contradict the Plain Language of the Statutes and Regulations.............................................................. 5
c. The SSA's Illegal Policy Has a Devastating Impact on Our Nation's Most
Vulnerable Citizens................................................................................................. 6
ANALySIS ......................................................................................................................... 9
A. Standard for Injunctive Relief. ................................................................................ 9 B. There is a Strong Likelihood that Plaintiffs Will Succeed on the Merits............. 10
1. The SSA's Policy is Unlawful. ................................................................. 10

a.

The SSA's Policy Is Contradicted by Statute and by the

Implementing Regulations and Has Been Repeatedly Found

to Be Unlawful. ............................................................................. 10

2.

Defendant Cannot Avoid this Result by Claiming that Some Class

Members Have Failed to Exhaust Their Administrative Remedies.......... 12

C. Plaintiffs Face Irreparable Harm if Their Benefits Are Suspended and the Balance of Hardships Tips Decidedly in Plaintiffs' Favor. .................................. 16

D. The Court Should Not Require Plaintiffs to Post a Bond..................................... 19

CONCLUSION ................................................................................................................. 20

19

20

21

22

23

24

25

26

27

28

6717725.8

- 1-

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 5 of 25

TABLE OF AUTHORITIES

2

Page(s)

3

FEDERAL CASES

4 Angotti v. Rexam, Inc., 2006 WL 1646135 (N.D. Cal. June 14, 2006) ........................................................................ 16

5 Barahon-Gomez v. Reno,

167 F.3d 1228 (9th Cir. 1999)................................................................................................. 18 6

Beltran v. Meyers,

7

677 F.2d 1317 (9th Cir. 1982)................................................................................................. 15

8

Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994)................................................................................................... 15

9 Blakely v. Commn 'r Soc. Sec., 330 F. Supp. 2d 910 (W.D. Mich. 2004) ................................................................................ 10

10 Bowen v. City ofNew York,

476 U.S. 476 (1986) ................................................................................................................ 12 11

Briggs v. Sullivan,

12

886F.2d 1131 (9thCir.1989) ........................................................................................... 13, 15

Caldwell v. Astrue,

13

2008 WL 2713714 (E.D. Tenn. July 10, 2008) ......................................................................... 9

14 Cares, Inc. v. Leavitt, 2007 WL 2023543 (E.D. CaL July 11, 2007) ................................................................... 12,14

15 Fowlkes v. Adamec,

432 F.3d 90 (2d Cir. 2005) ............................................................................................... passim 16

Garnes v. Barnhart,

17

352 F. Supp. 2d 1059 (N.D. Cal. 2004) .......................................................................... 1,2,10

Governing Council v. Mendocino County,

18

684 F. Supp. 1042 (N.D. CaL 1988) ....................................................................................... 18

19 Hull v. Barnhart, 336 F. Supp. 2d 1113 (D. Or. 2004) ................................................................................. 10, 11

20 Johnson v. Shalala,

2 F.3d 918 (9th Cir. 1993)................................................................................................ passim 21

Kildare v. Saenz,

22

325 F.3d 1078 (9th Cir. 2003)................................................................................................. 12

23

Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983)................................................................................................. 17

24 Miller v. Carlson, 768 F. Supp. 1331 (N.D. Cal. 1991) ........................................................................... 15,17,18

25 Newton-Nations v. Rogers,

316 F. Supp. 2d 883 (D. Ariz. 2004)....................................................................................... 15 26

Paxton v. Secretary ofHealth and Human Services,

27

856 F.2d 1352 (9th Cir. 1988)................................................................................................. 15

28

6717725.8

- 11 -

MEMO. OF POINTS AND AUTHORlTlES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 6 of 25

TABLE OF AUTHORITIES

( continued)

2

Page(s)

3 Reflv. Astrue, 2008 WL 4277713 (D. Minn. Sept. 15, 2008) .......................................................................... 9

4 Rodde v. Bonta,

357 F.3d 988 (9th Cir. 2004) ..................................................................................................... 8 5

Roe v. Anderson,

6

134 F.3d 1400 (9th Cir. 1998)................................................................................................. 15

7

Thomas v. Barnhart, 2004 WL 1529280 (D. Me. June 24,2004),

a/rd., 2004 WL 1770151 (D. Me. Aug. 4, 2004) ................................................................... 10

8

United State v. Murguia-Oliveros,

9

421 F.3d 951 (9th Cir. 2005) ................................................................................................... 11

u.s. 10

Westlands Water Disl. v. Dept. ofInterior, 2001 WL 34094077 (E.D. Cal. 2001) ..................................................................................... 18

11
FEDERAL STATUTES
12 18 U.S.C. § 3290 ........................................................................................................................... 11
13 42 U.S.C. § 402(x)(l)(A)(iv) ............................................................................................ 1,3,9, 11
14 42 U.S.C. § 405(g) .................................................................................................................. 11,14
15 42 U.S.C. § 1004(a)(2) ...................................................................................................... 1,3,9,11 42 U.S.C. § 1382(e) ........................................................................................................................ 3
16 42 U.S.C. § 1382(e)(4)(A) .................................................................................................... 1,9, 11
17 42 U.S.C. § 1382(e)(4)(A)(i)........................................................................................................... 3
18 Pub.L.No.104-193 ........................................................................................................................ 2

19
FEDERAL RULES
20 Fed. R. Civ. P. 65(c) ...................................................................................................................... 18
21

22

FEDERAL REGULATIONS

23 20 C.F.R. § 408.810(b) ........................................................................................................... 1,3,9
20 C.F.R. § 416.1339(b) ............................................................................................. ....... ......... 3, 9 24
20 C.F.R. § 416.1339(b)(i)(A)-(B) ................................................................................................. 1 25

26

TREATISES

27 13 Moore's Fed. Practice § 65.22[5][i] (3d ed.) ............................................................................. 9

28
6717725.8

-lll

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 7 of 25

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

The Social Security Administration ("SSA") has unlawfully denied benefits to, or

4 suspended the benefits of, thousands of otherwise eligible beneficiaries of Old Age, Survivors,

5 and Disability Insurance ("OASDI"), Supplemental Security Income ("SSI"), and Special

6 Veterans Benefits ("SVB") (collectively, the "Benefit Programs"). These individuals are

7 overwhelmingly either elderly or disabled. For most, the Benefit Programs are their sole or

8 primary source of income, without which they would be unable to pay for the necessities of life,

9 including food, clothing, and shelter. Denial and suspension of benefits have caused and continue

10 to cause significant, ilTeparable harm to those who have been improperly deprived of their

11 monthly payments. A preliminary injunction should issue requiring the SSA to cease applying its

12 unlawful policies described herein and vacate the terminations or suspensions that have been

13 based on the unlawful policy.

14

Under several substantially identical statutes and regulations, the law renders ineligible for

15 the Benefit Programs those persons who are "fleeing to avoid prosecution, or custody or

16 confinement after conviction" for a felony. 42 U.S.c. §§ 402(x)(I)(A)(iv), 1004(a)(2),

17 1382(e)(4)(A). As numerous courts have held, the plain language of these statutes sets forth an

18 intent requirement: The "statute's use of the words 'to avoid prosecution' confirms that for

19 'flight' to result in a suspension of benefits, it must be undertaken with a specific intent, i.e., to

20 avoid prosecution." Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2d Cir. 2005); see also Garnes v.

21 Barnhart, 352 F. Supp. 2d 1059, 1066 (N.D. Cal. 2004) ("[T]he concept of 'fleeing' contain[s] an

22 intent requirement."). This interpretation is supported by the relevant regulations, which require a

23 court "finding that the individual ... [i]s fleeing, or has fled, to avoid" prosecution or

24 confinement. 20 C.F.R. §§ 416.1339(b)(i)(A)-(B), 408.810(b).

25

Despite the clear language of the statute and its own regulations, and despite the consistent

26 judicial interpretations thereof, the SSA has adopted a policy of suspending benefits to every

27 person who it concludes has a felony warrant outstanding against him or her - without regard to

28 whether the court issuing the walTant made any finding that the person was fleeing prosecution

6717725.8

- 1-

MEMO. OF P OfNTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI ; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 8 of 25

and, indeed, without regard to whether, in fact, the person ever intended to f1ee prosecution, or

2 even has the necessary mental capacity and/or mental state to form such an intent. Garnes, 352 F.

3 Supp. 2d at 1066. The SSA even contends that a person can be "fleeing to avoid prosecution"

4 without knowing it, i. e., even if he or she does not know that criminal charges are pending or

5 likely. Courts have repeatedly found this internal policy to be contrary to the plain language of

6 the statute and regulations and, therefore, not entitled to deference and unlawful. Fowlkes, 432

7 F.3d at 96-97; Garnes, 352 F. Supp. 2d at 1065-66.

8

With this motion, Plaintiffs do not ask the Court to determine whether even a single class

9 member is eligible for benefits under the relevant statutes and regulations. Rather, Plaintiffs seek

10 only an injunction compelling the SSA to (1) apply the flight-with-intent provisions in a manner

11 consistent with the plain language of the statutes and their accompanying regulations, and (2)

12 vacate suspensions and denials previously made under the SSA's unlawful standard. Because the

13 SSA's policy contradicts the plain language of the statute and regulations (as courts have

14 consistently held), Plaintiffs have an overwhelming likelihood of success on the merits. Plaintiffs

15 will also suffer grave and irreparable harm in the absence of the requested relief because most

16 class members will be deprived of their sole, or at least primary, source of income. See, e.g.,

17 Johnson v. Shalala, 2 F.3d 918, 922 (9th Cir. 1993) ("[E]conomic hardship does constitute

18 irreparable harm. Back payments cannot erase the experience or the entire effect of several

19 months without food, shelter or other necessities.") (internal quotation marks omitted).

20 Accordingly, a preliminary injunction should issue requiring the SSA to conform its conduct to

21 the law.

22 II. 23 24

STATEMENT OF FACTS
A. The Relevant Statutes and Regulations.
Effective August 22, 1996, the Personal Responsibility and Work Opportunity

25 Reconciliation Act ("PRWORA"), Pub. L. No.1 04-193, amended the Social Security Act by

26 adding a provision authorizing the SSA to suspend or deny SSI benefits to individuals fleeing to

27 avoid prosecution, custody or confinement for a felony.

28

6717725.8

-2-

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 9 of 25

The PRWORA provides, in relevant part:

2

(4)(A) No person shall be considered an eligible individual or

eligible spouse for purposes of this subchapter with respect to any

3

month if during such month the person is

4

(i) fleeing to avoid prosecution, or custody or confinement after

conviction, under the law of the place from which the person flees,

5

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 .... 6
42 U.S.C. § 1382(e).

7 In 1999, after authorizing the SVB program to provide an SSI-like benefit for certain

8 World War II veterans residing outside of the United States, Congress extended the f1ight-with-

9 intent restrictions of 42 U.S.C. § 1382(e)(4)(A)(i) to the SVB program. 42 U.S.C. § 1004(a)(2).

10 Six years later, in 2005, Congress also extended the restrictions to the OASDI Program. 42

11 U.S.C. § 402(x)(1)(A)(iv).

12 Interpreting these flight-with-intent restrictions with respect to the SSI and SVB

13 programs, the SSA has issued two sets of implementing regulations relevant to this action. In

14 2000, the SSA issued regulations regarding the SSI program. These regulations provide in

15

relevant part that:

16

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

17

fugitive ... is effective with the first day of whichever of the

following months is earlier 18

(i) The month in which a warrant or order for the

19

individual's arrest or apprehension, an order requiring the

individual's appearance before a court or other appropriate

20

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

court or other duly authorized tribunal on the basis ofan

21

appropriate finding that the individual-

22

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

described in paragraph (a)( 1) of this section; 23

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

24

confinement after conviction as described in

paragraph (a)(2) of this section;
25 20 C.F.R. § 416.1339(b) (emphasis added). In 2003, the SSA issued largely identical regulations

26 applicable to the SVB program. 20 C.F.R. § 408.810(b). Thus, taken together, the plain language

27 of the statutory and regulatory framework clearly allows suspension or denial of benefits only

28

6717725.8

- ,., ,)

-

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 10 of 25

after a finding that an individual is fleeing with the specific intent to avoid prosecution, custody,

2 or confinement for a felony.

3

B. The SSA's Published Internal Policy Guidelines Contradict the Plain

4

Language of the Statutes and Regulations.

Despite promUlgating regulations consistent with the governing statutes, the SSA has 5

issued internal policy guidelines that allow for sweeping suspensions and denials that are plainly 6

unlawful. For example, the SSA ' s guidelines instructing its employees on the SS1 program's 7

"ineligibility criteria" under the PRWORA state that, 8

9

An individual is ineligible to receive SS1 benefits for any month during which he/she

10

Has an unsatisfied warrant for his/her arrest for a crime, or

11

attempt to commit a crime, that is a felony ...; [or]

12

Has an unsatisfied warrant for avoiding custody or confinement after conviction for a crime, or attempt to commit a

13

crime, which is a felony . . .;

Kroger Decl. Ex. A at 1 (SSA Program Operations Manual System ("POMS") Section S1 14

00530.001); see also Kroger Decl. Ex B (POMS Section GN 02613 .001, setting forth the 15

guidelines in the context of OASD1 benefits). These criteria do not require that the person be 16

"fleeing" prosecution - indeed, the word "fleeing" is entirely absent. Nor do the criteria require 17

a judicial finding as mandated by the governing regulations. Rather, the agency has issued an 18

additional policy guideline concerning the timing of when applicants become ineligible, which 19

specifically provides that "[t]he warrant does not have to state that the individual is ' fleeing' for 20

the suspension to apply." Kroger Decl. Ex. C (POMS Section S1 00530.010). 21

Even more remarkably, in a position that contradicts not only the law but also common 22

sense, the SSA has expressly taken the view that a person is "fleeing" prosecution even when they

are unaware that they are being sought by authorities: "We interpret . .. the Act to mean that a 24
person is 'fleeing to avoid prosecution, custody, or confinement' when a person has an 25
outstanding warrant for his or her arrest, even ifthat person is unaware ofthat warrant." Kroger
26 Decl. Ex. D (SSA Acquiescence Ruling acknowledging that the "Second Circuit Court of Appeals
27 rejected this interpretation") (emphasis added).
28

6717725.8

-4 -

M EMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV -4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 11 of 25

C. The SSA's Illegal Policy Has a Devastating Impact on Our Nation's Most
Vulnerable Citizens. 2
The injustice of the SSA' s unlawful policy is compounded by the fact that it targets 3
precisely those individuals who are most economically vulnerable - the poor, the elderly, and 4
the disabled. The impact of this policy is evident in the effect that it has had on several of the 5
named plaintiffs. Plaintiff Joseph Sutrynowicz, for example, has been receiving Social Security 6
Disability Insurance ("SSDI") benefits since 2004 because of his disability. Declaration of 7
Joseph Sutrynowicz (" Sutrynowicz Dec!.") ~ 3. In 2008, his payments were $997 per month. Id. 8
Together with the $14 he received each month in food-stamp assistance, these payments were his 9
only income, which he used to pay for life's necessities, including food, clothing, and his monthly 10
rent payment of $650. Id. In September 2008, Mr. Sutrynowicz received notice that the SSA 11
intended to suspend his benefits because of an outstanding arrest warrant issued in his name on 12
November 20, 1996. Id. ~ 4. On October 30, 2008, the SSA informed Mr. Sutrynowicz that his 13
benefits would be suspended immediately and demanded that he repay a supposed overpayment 14
of$42,876.70 within thirty days. Id. ~ 5. As a result of this suspension, he did not receive his 15
benefits in November and December of2008 . Id. Without his benefits, Mr. Sutrynowicz was 16
unable to pay rent during those months and struggled even to make it through each month without ]7
going hungry. Id. ~ 6. He managed to avoid homelessness only through the generosity of his 18
landlord, who allowed him to stay on rent-free. Id. Mr. Sutrynowicz received a single month's 19
check in January, which he assumes is part of the 90-day continuation of benefits that he is 20
entitled to under the law. Id. ~ 8. That 90-day period will expire at the end of the month, 21
however, and the SSA has not rescinded the suspension. Thus, if Mr. Sutrynowicz does not
22
receive immediate relief, he will be unable to pay rent and buy food in February. Mr. 23
Sutrynowicz is not sure whether his landlord will allow him to stay in his apartment in February if 24
he is unable to pay rent. Id. ~ 6. 25
Plaintiff Sharon Rozier similarly faces imminent and irreparable harm if she does not 26
receive relief. In March 2006, in a catastrophic car accident, Ms. Rozier suffered brain damage 27
and severe injuries to her spinal cord. Declaration of Sharon Rozier ("Rozier Dec!.") ~ 2; 28

67 17725.8

-5-

M EMO. OF P OINTS AND AUTHORITIES ISO PLAINTIFFS '
M OTION FOR A PI; C ASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 12 of 25

1 Declaration of Tannitte Shufford ("Shufford Dec!.") ~ 2. Due to these injuries, Ms. Rozier is

2 paraplegic, she has significant short-term and long-term memory loss, and she has difficulty

3 speaking. Id. Because her disabilities prevent her from working, Ms. Rozier began receiving

4 SSDI benefits around September 2006. But the SSA unlawfully terminated these payments in

5 2007 based on an outstanding arrest warrant. Rozier Dec!. ~ 4. Without any income, Ms. Rozier

6 is entirely dependent on her family to take care of her, which has put significant strain on her and

7 her loved ones. ld. ~ 7; Shufford Decl. ~ 7. She currently lives with her sister, Tannitte Shufford,

8 but because Ms. Shufford's home is too small to accommodate Ms. Rozier's two youngest

9 children, the children are forced to live with other relatives hundreds of miles from their mother.

10 Rozier Dec!. ~ 9; Shufford Dec!. ~ 6. Without any income, Ms. Rozier has also been unable to

11 purchase basic equipment to cope with her disability, such as a wheel chair more appropriate for

12 someone in her condition, or a shower chair that might enable her to bathe without assistance.

13 Rozier Decl. ~ 8.

14

Although the SSA reinstated the benefits of Plaintiff Rosa Martinez immediately after she

15 sought emergency injunctive relief from this Court, her story likewise demonstrates the

16 irreparable harm faced by Plaintiffs in this case. Ms. Martinez suffers from Sharp's syndrome,

17 fibromyalgia, hepatitis, depression and sleep apnea - disabilities which the SSA has determined 18 render her unable to work. Declaration of Rosa Martinez (" Martinez Decl.") ~ 2.1 Her only

19 source of income is her SSI benefit check of $870 per month. ld. ~ 3. Unsurprisingly given her

20 income level, Ms. Martinez has no savings. ld. When the SSA suspended her benefits in October

21 2008, she was able to pay rent and buy food only through the help of a $400 loan that she was

22 fortunate to secure with the assistance of her Legal Aid attorney. ld. ~ 17. But had the SSA not

responded to her application for emergency injunctive relief by immediately restoring her

24 benefits, she would have soon been destitute, without anywhere to turn for even the most basic of

25 life's necessities. ld.

26
27 1 In support of this Motion, Plaintiffs respectfully resubmit the Declaration of Rosa Martinez previously filed with the Court in support of Ms. Martinez's motion for a temporary restraining
28 order.

67 17725.8

-6 -

M EMO. OF POINTS AND A UTHORITIES ISO PLAINTIFF S'
MOTION FOR A PI ; CASE No. 08-CV -4735 C W

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 13 of 25

Finally, Plaintiff Roberta Dobbs has suffered significant and irreparable harm as a result

2 of the SSA's unlawful policy. The 74-year-old Ms. Dobbs is terminally ill, having been

3 diagnosed with end-stage lung disease. Id. ~ 2. She also suffers from diabetes and has a history

4 of heart trouble. Id. Because of her disabilities, she must use supplemental oxygen 24 hours a

5 day and has trouble even moving around her own home without the aid of a wheel chair. Id. ~~ 2,

6 6. Applying its unlawful policy, the SSA suspended Ms. Dobbs's benefits in January 2006

7 because of a 2001 California arrest warrant of which she had no knowledge. Id. ~ 3. After losing

8 her benefits, Ms. Dobbs was unable to pay for her most basic needs. Id. ~ 4. When the heating in

9 her home broke down, she did not have the money to have it repaired, requiring her to live her life

10 around a single space heater provided to her by her church. Id. ~ 5. When her wheel chair was

11 stolen, she was unable to replace it, making it impossible for her to leave her home. Id. ~ 6.

12 Fortunately, shortly after she was named as a plaintiff in this case, the SSA sent Ms. Dobbs a

13 check for $37,970 for the benefits that it improperly had withheld from her since 2006. Id. ~ 4.

14 But while this money will allow her to address the many needs that she was forced to neglect

15 since her benefits were suspended, id. ~ 7, it cannot make Ms. Dobbs whole for the hardship,

16 stress and depression that the SSA's policy caused her in these final years of her life. Id. ~~ 8, 9.

17

These individual stories of economic hardship are not outliers, but rather are squarely

18 representative of the class. By definition, beneficiaries of the SSI and SVB programs are

19 individuals who cannot afford the loss of even a single month's benefit payment. To qualify for

20 these programs, an individual recipient can have no more than $2000 in total assets and cannot

21 exceed certain strict income thresholds. See 42 U.S.c. §§ 1002(3), 1382(a)(3)(B). With very

22 limited exceptions, if beneficiaries of these programs somehow manage to obtain an additional

23 source of income, their payments are correspondingly reduced. See 42 U.S.C. § 1382(b). And

24 the benefit payments themselves are not large. Although some states, such as California, provide

25 a modest supplement, in most states the maximum monthly payment under the SSI program for

26 2009 is $674, 73 Fed. Reg. 64651 (Oct. 30,2008), hardly enough to meet most individuals'

27 monthly expenses and certainly not enough to put aside any significant savings. See Social

28 Security Administration, Office of Retirement and Disability Policy, Office of Research,

6717725 .8

-7-

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV -4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 14 of 25

Evaluation and Statistics, "Fast Facts and Figures About Social Security, 2008," p. 23 (SSA Pub.

2 No. 13-11785), attached as Kroger Decl. Ex. E. SVB payments are even smaller, as they are

3 restricted to 75 percent of the monthly SSI Federal Benefit Rate, or about $506 for 2009. See 42

4 U.S.c. § 1005.

5

Although the OASDI program does not contain the same indigency requirements as the

6 SSI and SVB programs, the SSA's own data show that the significant majority ofOASDI

7 beneficiaries cannot afford to have their benefits denied or suspended. As of December 2007, the

8 average monthly benefit payment to OASDI beneficiaries was $987. Kroger Decl., Ex. Eat 7.

9 Moreover, in 2006, 64 percent of all OASDI recipients over age 65 relied on these benefits for at

10 least half their total income, and a third relied on the payments for 90 percent of their income. Id.

11 In the case of elderly OASDI recipients who are not living with a spouse, their reliance on their

12 benefits is even more complete. Of this group, 72 percent rely on OASDI benefits for at least half

13 of their income and 41 percent rely on those benefits for at least 90% of their income. Id.

14

The Benefit Programs are the core of our nation's safety net for those who are elderly or

15 disabled. The SSA 's unlawful suspension or denial of benefits effectively denies that safety net

16 to members of the class, allowing the bulk of them to fall into the very destitution that the

17 programs were intended to prevent, thereby depriving them of the means to obtain the necessities

18 of life.

19 III. ANALYSIS

20

A. Standard for Injunctive Relief

21

In the Ninth Circuit, preliminary injunctive relief is appropriate when a plaintiff satisfies

22 either a four-part test or a two-part test. Radde v. Bonta, 357 F.3d 988, 994 (9th Cir. 2004).

23 Under the four-part test, a preliminary injunction should issue when a plaintiff demonstrates:

24 "(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to

25 plaintiffls] if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiffls] ,

26 and (4) advancement of the public interest (in certain cases)." Id. Under the alternative, two-part

27 test, injunctive relief is proper if the plaintiff demonstrates "e ither a combination of probable

28 success on the merits and the possibility of irreparable injury or that serious questions are raised

67 17725.8

-8-

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
M OTION FOR A PI; CASE No. 08-CY -4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 15 of 25

1 and the balance of hardships tips sharply in [their] favor." Jd. (emphases in original). Under this

2 second test, the two prongs operate on a sliding scale, such that '''the greater the relative hardship

3 to the party seeking the preliminary injunction, the less probability of success' must be

4 established by the party." Id. While courts in the Ninth Circuit apply both tests, they "primarily

5 employ[] the ... two-prong test." 13 Moore's Fed. Practice § 65.22[5][i] (3d ed.).

6

As set forth below, Plaintiffs here satisfy the requirements of either test, and the Court

7 should therefore issue the requested preliminary relief.

8

B. There is a Strong Likelihood that Plaintiffs Will Succeed on the Merits.

9

Plaintiffs have a strong likelihood of success on the merits because the SSA's policy is

10 contrary to the plain language of the governing statute and regulations, as courts have repeatedly

11 determined.

12

1. The SSA's Policy is Unlawful.

13

a. The SSA's Policy Is Contradicted by Statute and by the

Implementing Regulations and Has Been Repeatedly Found to

14

Be Unlawful.

15

The SSA' s policy of finding otherwise-qualified SSI beneficiaries ineligible based on the

16 mere existence of a warrant, without a finding that the person is fleeing prosecution or custody or

17 confinement after conviction for a felony, contradicts the clear language of the statutes and the

18 relevant implementing regulations. Prior to the suspension or denial of benefits, the plain

19 language of each of the relevant flight-with-intent statutes requires a finding that an individual is

20 "fleeing" with the specific intent "to avoid prosecution, or custody or confinement." 42 U.S.c.

21 §§ 402(x)(l)(A)(iv), 1004(a)(2), 1382(e)(4)(A). The relevant implementing regulations require,

22 furthermore, that that finding be made "by a court or other duly authorized tribunal." 20 C.F.R.

23 §§ 408.810(b), 416.1339(b)(i)(A)-(B).

24

Unsurprisingly, therefore, the courts have repeatedly rejected the SSA's attempts to

25 suspend benefits based on its internal guidelines, which do not require any finding (by a court or

26 anyone else) that the beneficiary is "fleeing." E.g., Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2d

27 Cir. 2005); Reffv. Astrue, 2008 WL 4277713 at *7 (D. Minn. Sept. 15,2008); Caldwell v. Astrue,

28

6717725.8

-9-

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 16 of 25

2008 WL 2713714 (E.D. Tenn. July 10,2008); Blakely v. Comm 'r ofSoc. Sec., 330 F. Supp. 2d

2 910 (W.D. Mich. 2004); Hull v. Barnhart, 336 F. Supp. 2d 1113 (D. Or. 2004); Thomas v.

3 Barnhart, 2004 WL 1529280 (D. Me. June 24, 2004), aIf'd., 2004 WL 1770151 (D. Me. Aug. 4,

4 2004); Garnes v. Barnhart, 352 F. Supp. 2d 1059 (N.D. Cal. 2004). In Fowlkes, for example, the

5 Second Circuit expressly held that the SSI "statute does not permit the Commissioner to conclude

6 simply from the fact that there is an outstanding warrant for a person's arrest that he is 'fleeing to

7 avoid prosecution. '" 432 F.3d at 96-97. The Fowlkes court held, moreover, that the regulations

8 permit the agency to suspend benefits only after a court or other authorized tribunal has made the

9 required finding: "[T]he regulation does not permit the agency to make a finding of flight; rather,

10 it demands a court or other appropriate tribunal to have issued a warrant or order based on a

11 finding of flight." Jd. at 97 (emphasis in original). The Second Circuit based these rulings on the

12 plain language of the SSI statute and accompanying regulations, noting that the court "need not

13 afford any deference to the [SSA's construction] here, because the plain language ofthe statute 14 and its implementing regulation do not permit th[at] construction ...." Jd. at 96.2

15

The court in Hull reached a similar ruling. There, the plaintiff moved from Nevada to

16 Oregon several months before the criminal charges were filed against her. 336 F. Supp. 2d at

17 1115. She was unaware of the charges until the SSA sought to suspend her SSI benefits. Jd. She

18 was not in hiding - she had obtained an Oregon driver's license when she moved and had lived

19 at the same address for four years, then had moved once and remained at the second address for

20 another three years. Jd. She had not changed her name or done anything else to avoid law

21 enforcement. Jd. She was eventually arrested at her home and she waived extradition, but

22 Nevada did not bother to take her into custody and the Oregon authorities subsequently released

23
24 2 See also Garnes, 352 F. Supp. 2d at 1067 ("The court agrees that the plain language of [the regulation] requires more than the existence of a warrant. It requires a finding by a court or other
25 duly authorized tribunal ... 'that the individual is fleeing, or has fled, to avoid prosecution."'); Hull, 336 F. Supp. 2d at 1116-17 ("The Commissioner argues that if a warrant is issued, the
26 person is a fleeing felon under the statute and remains so until the warrant is resolved. This is not what the regulation provides. It requires a court finding that the person is fleeing.... This is the
27 only way to give meaning to all parts of the regulation." (emphasis added)); Thomas, 2004 WL 1529280, at *4 ("[T]he commissioner's interpretation of the statute ... is unreasonable to the
28 extent that it presumes that the statute applies merely from the existence of an arrest warrant.").

6717725.8

- 10 -

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 17 of 25

her. ld. The court found that the absence of any evidence that the court issuing the warrant made

2 a finding that the plaintiff was fleeing prosecution precluded the agency from suspending the

3 plaintifl's benefits and, in any event, the evidence was insufficient to find that the plaintiff was, in

4 fact, fleeing. ld. at 1117.

5

These uniform judicial decisions holding that the agency's policies are unlawful are weU-

6 founded. The statutes use the term "fleeing," which necessarily implies action combined with a

7 particular mental state - i.e., "the conscious evasion of arrest or prosecution." Fowlkes, 432

8 F.3d at 96-97. In the context of 18 U.S.C. § 3290, the provision tolling the statute of limitations

9 in criminal proceedings, the Ninth Circuit has adopted a similar interpretation of "fleeing," saying

10 that the defendant must have "concealed himself or herself with an intent to avoid prosecution."

11 United State v. Murguia-Oliveros, 421 F.3d 951 , 954 (9th Cir. 2005). The statutes, moreover,

12 require not only that the individual be " fleeing," but that the specific purpose of that "flight" be

13 the avoidance of "prosecution, or custody or confinement after conviction" for a felony. 42

14 U.S.C. §§ 402(x)(1)(A)(iv), 1004(a)(2), 1382(e)(4)(A) Yet the SSA's policy requires neither

15 action nor any particular mental state. It thus contradicts the plain language of the governing

16 statute and regulations and cannot lawfully be applied.

17

Given the unambiguous statutory and regulatory language and the uniformity of the

18 caselaw interpreting it - all of which strongly support a ruling in favor of Plaintiffs - there

19 exists a strong likelihood that Plaintiffs will succeed on the merits. This aspect of both

20 preliminary injunction tests is therefore satisfied.

21

2. Defendant Cannot Avoid this Result by Claiming that Some Class

22

Members Have Failed to Exhaust Their Administrative Remedies.

23

The SSA has a set policy concerning the application of the flight-with-intent provisions -

24 written into its employee manual - and the law does not require Plaintiffs to delay seeking

25 judicial review in order to permit the SSA to apply this unlawful policy to every class member at

26 every level of review. Although judicial review of SSA decisions under 42 U.S .C. § 405(g)

27 typically requires a plaintiff to "exhaust his administrative remedies by proceeding through all .. .

28 stages of the administrative appeals process" prior to bringing an action in federal district court,

6717725.8

- 11 -

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV -4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 18 of 25

Bowen v. City ofNew York, 476 U.S. 476, 482 (1986), this requirement is waived where a

2 plaintiff satisfies a three-part test: "The claim must be (1) collateral to a substantive claim of

3 entitlement (collaterality), (2) colorable in its showing that denial of relief will cause irreparable

4 harm (irreparability), and (3) one whose resolution would not serve the purposes of exhaustion

5 (futility)." Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993); accord Cares, Inc. v. Leavitt,

6 2007 WL 2023543, at *2 (E. D. Cal. July 11 , 2007) (applying the test to the claims of an

7 individual disabled Medicare beneficiary). Each element of this test is satisfied here.

8

Collaterality. "A plaintiffs claim is collateral if it is not essentially a claim for benefits,"

9 Johnson , 2 F.3d at 921, but rather a claim that a "systemwide .. . policy ... [is] inconsistent in

10 critically important ways with established regulations," City ofNew York, 476 U.S. at 485.

II Applying this rule, the Ninth Circuit repeatedly has held that claims are collateral where plaintiffs

12 "neither sought nor were awarded benefits ... but rather challenged the Secretary's failure to

13 follow the applicable regulations." Johnson , 2 F.3d at 921 (quotations omitted); see also Kildare

14 v. Saenz, 325 F.3d 1078, 1082-83 (9th Cir. 2003) (holding that claims are collateral where they

15 "chaUenge[] specific ... policies that conflict[] with established law" but denying plaintiffs'

16 claims of exhaustion because "they cannot point to any specific policy, directive, or order

17 requiring the State Defendants to disregard the regulations, and that is what is lacking in this case:

18 a policy. ").

19

Here, Plaintiffs unquestionably challenge a "systemwide policy" - namely, the SSA's

20 official, published policy of denying benefits solely on the basis of an outstanding warrant

21 without the findings of intent required by the relevant statutes and regulations . As in Johnson ,

22 Plaintiffs' claims explicitly do not concern individual benefit determinations; rather, Plaintiffs

23 seek to compel Defendants to (1) apply the flight-with-intent provisions in a manner consistent

24 with the plain language of the statutes and their accompanying regulations (see, e.g. , Am. Compl. 25 ~~ 111c, 1] 1d), and (2) to vacate suspensions and denials previously made under the SSA's

26 unlawful standard. Granting the relief sought here will not prevent the SSA from denying or

27 suspending benefits to individuals who do not meet the statutory requirements - it will simply

28 force the SSA to make those determinations in accordance with the applicable statutes. As the

67 17725.8

- 12 -

M EMO. OF POINTS AND A UTHORITIES ISO PLAINTIFFS '
MOTION FOR A PI ; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 19 of 25

Johnson court put it, "[slome claimants will receive benefits they were once denied. For others,

2 the readjudication will make no difference. They would not be entitled to benefits under either

3 policy." 2 F.3d at 921. Because with this action Plaintiffs do not challenge the SSA's factual

4 adjudications, but instead challenge the legality of its policies, the action is collateral to a

5 substantive claim of entitlement.

6

Irreparable Harm. To satisfy the irreparable harm prong of this test, a plaintiff need

7 only raise a "colorable claim" of irreparability, which the Ninth Circuit interprets as a claim that

8 is "not wholly insubstantial, immaterial, or frivolous." Briggs v. Sullivan, 886 F.2d 1132, 1140

9 (9th Cir. 1989) (quotations omitted); accord Johnson, 2 F.3d at 922. As set forth in detail in Part
10 m.c below, if the SSA is allowed to continue its policy of unla~fully suspending and denying

11 benefits, many Plaintiffs face the immediate threat severe economic hardship, including in some

12 cases the possibility "months without food, shelter or other necessities." Johnson, 2 F.3d at 922.

13 This is sufficient to state a colorable claim of irreparable harm in the Ninth Circuit. Jd. ("We hold

14 that the economic hardship suffered by the plaintiffs while awaiting administrative review

15 constitutes irreparable injury.").

16

Futility. Finally, it would not serve the purposes of exhaustion for class members to

17 complete their administrative remedies because such an endeavor plainly would be futile. With

18 this action, Plaintiffs do not ask the Court to resolve a factual dispute; rather, Plaintiffs raise a

19 challenge to the SSA's official policy with respect to the flight-with-intent restrictions to the

20 Benefit Programs. Plaintiffs' objection is not that the SSA has wrongly determined that the class

21 members are fleeing with the specific intent to avoid prosecution, but that the SSA unlawfully has

22 decided that such a determination is unnecessary. This action therefore presents a straightforward

23 statutory challenge to the SSA's policies. See Johnson, 2 F.3d at 922 ("We do not need a detailed

24 factual record for each claimant to decide such a straightforward statutory challenge. Nor do we

25 require the benefit of agency expertise because the issue posed by class members is one purely of

26 statutory construction." (quotations and citations omitted».

27

Under such circumstances, courts have held that "there [i]s nothing to be gained from

28 permitting the compilation of a detailed factual record, or from agency expertise," and that,

6717725.8

- 13 -

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 20 of 25

therefore, exhaustion is futile. Briggs, 886 F.2d at 1140. Specifically, cOUl1s find futility where,

2 as here, an "agency applies a systemwide policy that is inconsistent in critically important ways

3 with established regulations." Johnson, 2 F.3d at 922 (internal quotations omitted). In Cares,

4 Inc. v. Leavitt, for example, a disabled Medicare beneficiary brought a claim challenging the

5 constitutionality of a specific policy of the Department of Health and Human Services. The

6 defendant moved to dismiss on the grounds that the plaintiff had not exhausted her administrative

7 remedies under Section 405(g) of the Social Security Act (a provision that also applies to the

8 Medicare Act). The Cares court rejected this claim, holding that "because plaintiffs

9 constitutional claim challenges fundamental agency policies and practices that broadly impact

10 similarly situated medicare beneficiaries, administrative exhaustion would be futile." Cares,

11 Inc., 2007 WL 2023543, at *4 (emphasis added). Under such circumstances, the court held,

12 "[t]he policies underlying the exhaustion requirement - deference to agency expertise,

13 development of a detailed factual record, and conservation of judicial resources - are not

14 furthered by foregoing immediate judicial consideration of this issue." ld. This reasoning applies

15 with equal force here, and the Court should therefore determine that Plaintiffs have satisfied the

16 futility prong of the test for waiver of exhaustion.

17

The futility of the administrative process is further illustrated by the case of Garnes v.

18 Barnhart, in which the plaintiff successfully pursued an appeal before an administrative law

19 judge ("ALl") on the ground that he was not and had never been "fleeing," only to have

20 Defendant issue a final decision reversing the ALl's opinion as contrary to SSA policy.

21 Moreover, the agency has steadfastly clung to that unlawful policy, despite more than a half-

22 dozen federal court decisions finding it unlawful. See, e.g., note 2, supra. The agency' s

23 recalcitrance in the face of plain statutory and regulatory language and unambiguous judicial

24 rulings further supports a finding of futility. Rather than continuing a potentially endless series of

25 cases adjudicating the same issue in the district courts, with no authority to bind the agency

26 beyond an individual plaintiffs case, the Court should hold that such actions are futile and should

27 resolve the issue in this class action for all persons affected by the unlawful policy.

28

6717725.8

- 14 -

M EMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS '
MOTION FOR A PI; C ASE No. 08-CV -4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 21 of 25

c. Plaintiffs Face Irreparable Harm if Their Benefits Are Suspended and the
Balance of Hardships Tips Decidedly in Plaintiffs' Favor. 2
"When a family is living at subsistence level, the subtraction of any benefit can make a 3
significant difference to its budget and to its ability to survive." Paxton v. Sec y ofHealth &
4
Human Servs., 856 F.2d 1352, 1354 (9th Cir. 1988). For this reason, courts in the Ninth Circuit 5
regularly find that a class meets the irreparable-harm requirement where financially vulnerable 6
class members face the possibility of economic harm. See, e.g., Roe v. Anderson, 134 F.3d 1400, 7
1404-05 (9th Cir. 1998); Beno v. Shalala, 30 F.3d 1057, 1063-64; Johnson, 2 F.3d at 922 8
(holding, in the context of SSI benefits, that "economic hardship does constitute irreparable harm. 9
Back payments cannot 'erase the experience or the entire effect of several months without food, 10
shelter or other necessities.'" (quoting Briggs, 886 F.2d at 1140)). 11
In Anderson, for example, the Ninth Circuit held that a class of California welfare 12
recipients had established ilTeparable harm even though they faced only the reduction - rather 13
than the complete suspension or denial - of their welfare benefits. 134 F.3d 1400 at 1404-05. 14
As the Anderson court noted, "[n]umerous cases have held that reductions in [welfare] benefits, 15
even reductions of a relatively small magnitude, impose ilTeparable harm on recipient families." 16
ld. at 1404; see also Miller v. Carlson, 768 F. Supp. 1331, 1339 (N.D. Cal. 1991) (finding 17
irreparable harm where plaintiffs, who received educational aid as recipients of a benefit program 18
for families with dependent children, faced the threat of having to "choose between dropping out 19
of school and foregoing basic necessities in order to pay for child care."). 20
Similarly, in Newton-Nations v. Rogers, 316 F. Supp. 2d 883 (D. Ariz. 2004), the court 21
held that a class of Medicaid recipients had established ilTeparable harm where their copayments
22
for medical services were increased. There, the mere possibility that some class members might 23
be denied medical care as a result of the challenged policy was sufficient. See id. at 888 24
("Because Plaintiffs may be denied medical care, Plaintiffs have demonstrated ilTeparable injury." 25
(emphasis added)); see also Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982) ("Plaintiffs 26
have shown a risk ofilTeparable injury, since enforcement of the California rule may deny them 27
needed medical care. That is a sufficient showing."). 28

6717725.8

- 15 -

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
M OTION FOR A Pf; CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 22 of 25

1

This Court has likewise recognized Ninth Circuit caselaw holding that, where a class, "by

2 definition," consists of particularly vulnerable individuals, a "finding that [it faces] irreparable

3 harm [can be] a reasonable inference even without any particularized showings by individual

4 class members." Angotti v. Rexam, Inc., 2006 WL 1646135, at *14 (N.D. Cal. June 14, 2006).

5 That rule is applicable here, as the proposed class is by definition economically distressed. Its

6 members are almost all elderly or disabled, and the overwhelming majority of them are of

7 extremely limited economic means. In the case of the SSI and SVB programs, this is so by

8 statute, as beneficiaries must meet strict indigency requirements. And in the case of the OASDI

9 program, the SSA's own data establish that OASDI recipients receive subsistence-level benefits

10 and that aged beneficiaries overwhelmingly rely on those benefits for a significant portion of their

11 lllcome.

12

Moreover, although not necessary to establish irreparable harm where the class, by

13 definition, consists of particularly vulnerable individuals, Plaintiffs have also shown

14 particularized harm through the declarations submitted in conjunction with this Motion. The

15 statements of class members Joseph Sutrynowicz, Rosa Martinez, Roberta Dobbs, and Sharon

16 Rozier demonstrate that even a single month oflost benefits can threaten Plaintiffs' ability to pay

17 rent, buy food, and pay for life's other necessities. Mr. Sutrynowicz, for example, was unable to

18 pay rent when his benefits were suspended in November. Sutrynowicz Decl. ~ 6. Ms. Martinez

19 managed to avoid homelessness only with the help of an emergency loan. Martinez Decl. ~ 17.

20 The terminally ill Ms. Dobbs lost her independence and was confined to her home when she was

21 without the resources to replace a stolen wheelchair. Dobbs Decl. ~ 6. And Ms. Rozier has been

22 unable to buy needed equipment for her disability and has been forced to live apart from her five-

23 year-old son and nine-year-old daughter. Rozier Decl. ~~ 8-9; Shufford Decl. ~ 6. It is

24 reasonable, moreover, to infer that these harms are representative of the injuries faced by the class

25 generally, as it can hardly be disputed that the class is made up of individuals facing similar

26 economic hardships while at the same time dealing with the difficulties of old age and disability.

27 See Part II.C, supra.

28

6717725.8

- 16 -

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CAS E No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 23 of 25

Finally, where, as here, the harm to a government defendant is merely economic and the

2 harm to the plaintiffs consists of the deprivation of living necessities, the Ninth Circuit has held

3 that the balance of hardships tips decidedly in favor of the plaintiffs:

4

[T]he physical and emotional suffering shown by plaintiffs in the

record before us is far more compelling than the possibility of some

5

administrative inconvenience or monetary loss to the government.

. " Faced with such a conflict between financial concerns and

6

preventable human suffering, we have little difficulty concluding

that the balance of hardships tips decidedly in plaintiffs' favor.

7

8

We also consider it crucial that, because the members of plaintiffs'

9

class are largely infirm and disabled, their resources and life spans

are by definition extremely limited. Deprivation of benefits

10

pending trial might cause economic hardship, suffering or even

death. Retroactive restoration of benefits would be inadequate to

11

remedy these hardships. Following his thorough review of the

record, Judge Gray reached a similar conclusion: "Retroactive

12

relief [for plaintiffs] would be inadequate, and perhaps too late, to

ensure that the purpose of Social Security disability benefits, i.e. ,

13

provision of a minimum standard of living for the poor and

disabled, will be served."

14

Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983); see also Miller, 768 F. Supp. at 1339-40

15 ("Where the government only faces a financial harm, the balance of hardships strongly favors

16 plaintiffs who will be deprived of essential benefits.").

17 In short, Plaintiffs face irreparable harm if the Court does not issue a preliminary

18 injunction and that the balance of hardships tips decidedly in their favor.

19
* * *
20 Plaintiffs have thus satisfied the relevant parts of both the two-part and four-part tests

21 applied in the Ninth Circuit for determining the propriety of preliminary injunctive relief. They

22
have established a strong likelihood of success on the merits, the possibility of irreparable injury,

23 and a balance of hardships decidedly in their favor. This is sufficient to grant a preliminary

24 injunction under the four-part test. Moreover, because the probability of success is so great -

25 supported by both the unambiguous text of the statutes and regulations and the uniform caselaw

26 establishing the illegality of the SSA' s policy - and because the balance of hardships tips so

27 decisively in their favor, Plaintiffs have satisfied either combination of factors applied in the two-

28

67 17725.8

- 17 -

M EMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
M OTION FOR A PI ; C ASE No. 08-CV-47 35 C W

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 24 of 25

part, sliding-scale test. The Court should therefore grant the requested injunctive relief and issue

2 the injunction set forth in the accompanying Proposed Order.

3

D. The Court Should Not Require Plaintiffs to Post a Bond.

4

Although in some circumstances Federal Rule of Civil Procedure 65(c) requires a plaintiff

5 to give security in order to compensate a defendant who may later be found to have been

6 wrongfully enjoined, the Ninth Circuit has held that district courts have broad discretion to limit

7 or waive this bond requirement. See Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.

8 1999) ("Our sister circuits have construed Fed. R. Civ. P. 65(c) as investing the district court with
9 discretion as to the amount of security required, ifany. We agree with this rationale.") (emphasis

10 added; citations omitted). Applying this flexible standard, courts regularly waive the bond

11 requirement where, as here, the plaintiffs have limited resources or where public policy

12 considerations otherwise support a waiver. See, e.g. , Westlands Water Dist. v. Us. Dept. of
13 Interior, 200 I WL 34094077, at *19 (E.D. Cal. 2001) ("Some com1s ... permit indigent or poor
14 parties either to not post or to post nominal bond amounts."); Miller v. Carlson, 768 F. Supp.

15 1331 , 1340 (N.D. Cal. 1991 ) ("[A bond] is not required where plaintiffs are indigent or where

16 considerations of public policy make waiver of a bond appropriate. "); Governing Council v.

17 Mendocino County, 684 F. Supp. 1042, 1047 (N.D. Cal. 1988) (" [C]ourts have discretion to

18 excuse the bond requirement under appropriate circumstances, such as ... where suit is brought

19 on behalf of a group of mostly indigent persons.").

20

In Miller , the plaintiffs were a putative class of recipients of Aid to Families with

21 Dependent Children ("AFDC"), "who need[ed] child care in order to participate in educational or

22 training activities ...." 768 F. Supp. at 1333. Plaintiffs sought preliminary injunctive relief,

23 contending that defendants were unlawfully restricting the child-care guarantee under the Family

24 Support Act. After granting the injunctive relief, the Miller court held that the plaintiffs need not 25 post a bond because strict application of the bond requirement "would effectively deny access to

26 judicial review for indigent people." Id. at 1340. The court noted that plaintiffs were "indigent

27 people who rely upon AFDC for the necessities of life," id. , and that, as such, "considerations of

28 equity dictate[d] that the requested preliminary injunction issue without bond." Id. at 1341.

671 7725.8

- 18 -

M EMO. OF POINTS AND AUTHORITIES ISO P LAINTIFFS'
MOTION FOR A PI; C ASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 51 Filed 01/12/2009 Page 25 of 25

1

As set forth above, Plaintiffs are largely indigent. Most would not have the resources to

2 post a bond; nor would it be possible to collect one from each class member. Most rely upon the

3 Benetit Programs "for the necessities of life." Plaintiffs thus tind themselves in a predicament

4 similar to that faced by the plaintiffs in Miller. They do not have the means to post a bond, and if

5 they are required to do so, the result will be the effective denial of the requested injunctive relief

6

preventing access to the sought-after judicial review solely on the basis of indigence. Under

7 these circumstances, the Court should waive the bond requirement.

8 IV. CONCLUSION

9 For the foregoing reasons, Plaintiffs respectfully request that the Court enjoin the

10 Commissioner from applying the tlight-with-intent provisions inconsistent with the plain

11 language of the relevant statutes and regulations by entering the Proposed Order tlled herewith.

12

DATED: January 12,2009 13

MUNGER, TOLLES & OLSON LLP DAVID H. FRY

MARKR. CONRAD

14

JEREMY S. KROGER

15

16

By IkJ;lrfiu,~

WH. FRY

17

18

19

20

21

22

23

24

25

26

27

28

6717725.8

- 19 -

MEMO. OF POINTS AND AUTHORITIES ISO PLAINTIFFS'
MOTION FOR A PI; CASE No. 08-CV-4735 CW

Page 1 of 3

Lechwar, Maureen

From: ECF-CAND@cand.uscourts.gov

Sent: Monday, January 12, 2009 3:39 PM

To:

efiling@cand.uscourts.gov

Subject: Activity in Case 4:08-cv-04735-CW Martinez et al v. Astrue Motion for Preliminary Injunction

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court Northern District of California Notice of Electronic Filing or Other Case Activity

NOTE: Please read this entire notice before calling the Help Desk. If you have questions, please email the Help Desk by replying to this message; include your question or comment along with the original text.
Please note that these Notices are sent for all cases in the system when any case activity occurs, regardless of whether the case is designated for e-filing or not, or whether the activity is the filing of an electronic document or not.
If there are two hyperlinks below, the first will lead to the docket and the second will lead to an e-filed document. If there is no second hyperlink, there is no electronic document available . See the FAQ posting 'I have a Notice of Electronic Filing that was e-mailed to me but there's no hyperlink...' on the ECF home page at https://ecf.cand.uscourts.gov for more information.

The following transaction was received from by Conrad, Mark entered on 1/12/2009 3:38 PM PST and

filed on 1/12/2009

Case Name:

Martinez et al v. Astrue

Case Number: 4:08-cv-4735

Filer:

Rosa Martinez

Jimmy Howard

Roberta Dobbs

Brent A. Roderick

Sharon D. Rozier

Joseph Sutrynowicz

Document Number: 51

1/12/2009

Page 2 of 3
Docket Text: MOTION for Preliminary Injunction and Memorandum of Law in Support Thereof filed by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. Motion Hearing set for 2/19/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Conrad, Mark) (Filed on 1/12/2009)
4:08-cv-4735 Notice has been electronically mailed to:
Anna Margaret Rich arich@nsclc.org
Christopher Allen Douglas cdouglas@legalaidsmc.org
David H. Fry frydh@mto.com, jeremy.kroger@mto.com, julie.lunsford@mto.com, mark.conrad@mto.com
Gerald Andrew McIntyre GMCINTYRE@NSCLC.ORG
Kevin Edward Prindiville kprindiville@nsclc.org
M. Stacey Hawver mshawver@legalaidsmc.org
Mark Russell Conrad Mark.Conrad@mto.com
Victoria R. Carradero victoria.carradero@usdoj.gov, bonny.wong@usdoj.gov
4:08-cv-4735 Notice has been delivered by other means to:
Emilia Sicilia Urban Justice Center 123 William Street, 16th Floor New York, NY 10038
Jennifer Parish Urban Justice Center 123 William Street, 16th Floor New York, NY 10038
Marilyn Holle Disability Rights California 3580 Wilshire Blvd., Suite 902 Los Angeles, CA 90010-2512
William G. Lienhard Urban Justice Center 123 William Street, 16th Floor New York, NY 10038
The following document(s) are associated with this transaction:
Document description:Main Document
1/12/2009

Page 3 of 3 Original filename:C:\Documents and Settings\lechwarme\Desktop\Holding Folder\NOT OF MOT AND MEMO OF LAW.PDF Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=1/12/2009] [FileNumber=4977758-0] [b23a7c651ccbcf3edb916f1fe6bbab4799255251d622661bd9972efadec64404503d6 d61c188254ab03f53e6946c6aea77e8f315f7ba01628fb8c18c2f14c66b]]
1/12/2009

 
 Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 1 of 41

1 DAVID H. FRY (SBN 189276) DavidFry@mlo.com
2 MUNGER. TOLLES & OLSON LLP S60 Mission Street, 27th Floor
3 Twenty-Seventh floor
San Francisco. CA 94105-2907 4 T: (415) 512-40001 F: (415) 512-4017

5 GERAlD A McINTYRE (SBN 181746) gmcintyre@nsclc.org
6 NATIONAL SENIOR CITIZENS LAW CENTER 343S WIlshire Blvd., Suite 2860
7 Los Angeles. CA 90010-1938
8 ' T: (213) 674-2900 1F: (213) 639-0934

ANNA RICH (SBN 230195) 9 aricb@nsclc.org
KEVIN PRINDIVILLE (SBN 235835) 10 kprindiville@nscJc.org
NATIONAL SENIOR CrrIZENS LAW CENTER 11 1330 Broadway, Suite 525
Oakland, CA 94612 12 T: (510) 663-1055 1F: (510) 663-1051

13

Attorneys for Plaintiffs ROSA MARTINEZ. )IMMY HOWARD, ROBERTA DOBBS, BRENT A RODERICK,

14

SHARON D. ROZIER, JOSEPH SUTRYNOWIcz. and all others similarly situated

IS Additional counsellistCd on signarure page

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19

20 ROSA MARTINEZ, JIMMY HOWARD,

21

ROBERTA DOBBS, BRENT A. RODERICK. SHARON D. ROZlER, and

22

JOSEPH SUTRYNOWIcz,on behalf of themselves and aQ others similarly situated,

23

Plaintiffs,

24

vs.

25 MICHAEL J. ASTRUE. Commissioner of
26 Social SCCQrity. in his official capacity,

21

Defendant.

I -----------------------~
28

CASE NO. 08-CV-4135 CW
FIRST AMENDED CLASS ACfION COMPLAINT

6578601).2

FIRST AMENDED CLASS AcnOl'l COMJIUIHr. CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 41 Filed 12/1212008 Page 2 of 41

1

Plaintiffs, through their anomeys. bring this action on behalf of themselves and all

2 others similarly situated. On personal knowledge as to themselves and their activities, and on

3 information and belief as to all other matters, Plaintiffs hereby allege as follows:

4

NATURE OF THE ACTION

5

1. Plaintiffs bring this class action to challenge Defendant Commissioner Michael I.

6 Astrue's (the "Commissioner") unlawful policy of suspending or denying Old Age, Survivors,

7 and Disability Insurance ("OASDI"), Supplemental Security Income ("SSI") and Special

8 Veterans Benefits ("SVBtt) benefits, and of refusing to certify payments to an individual as a 9 representative payee in these three benefit programs, on the basis ~f nothing more than the

10 existence of an outstanding felony arrest wamnt for that person or for a person sharing the same

11 flISt and last name and Social Security Number ("SSN") or date of birth. The Commissioner

12 lacks any statutory authority for this policy. The provisions under which he purports to act, by

13 their express language, apply only when an individual is ''fleeing to avoid prosecution, or custody

14 or confinc:ment after conviction" for a felony. This language requires a fmding of an intent to flee

15 for the specific purpose of avoiding prosecution. The Commissioner's misapplication of a

16 narrowly targeted statute has resulted in needless destitution for countless thousands of the most

17 wlnerable people in America - the elderly and the disabled - a majority of whom frequently

1g rely on these benefits for most. if not all, of their income. Some have also lost Medicaid coverage

19 associated with their SSI eligibility and others have lost their Medicare Part B coverage because

20 they were no longer able to pay the premium which bad previousJy been taken out of their

21 monthly OASDI benefit.

22

2. With this class action. Plaintiffs Rosa Martinez. Jimmy Howard. Roberta Dobbs,

23 Brent A. Roderick, Sharon D. Rozier, and Joseph SutrynoWicz seek declaratory and injWlCtive

24 rel~ef - or, in the alternative. a writ of mandamus - on behalf of themselves and all others

25 similarly situated, against the SSA's unlawful policy of suspending benefits based solely on the

26 existence of an outstanding warrant.

27 1/

28 1/

6578609.2

- 1-

FIRST AMENDED ClASS AcnoN CoMPlAINT: CASE No. OS-CV-4735 CW

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 3 ~f 41

1

JURISDICTION AND VENUE

2

3. Jurisdiction in this Court is proper because Plainliffs' claims arise under the laws of

3 the United States. 28 U.S.c. § 1331. Specifically, this Court bas jurisdiction over the subject

4 matter of this lawsuit pursuant to 42 U.S.C. §§ 405(g), l009(b). 1383(c)(3). as well as 28 U.S.C.

5 § 1361.

6

4. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C.

7 § 405(g) because at least one named plaintiffresides within the Northern District of California.

8

S. Jntradistrict Assignment: Pursuant to Civil Local Rules 3-2(c). 3-2(d). and 3-S(b).

9 this action is properly assigned to the San Francisco Division because Plaintiff Rosa Martinez

10 resides in San Mateo County and a substantial part of the events or omissions that gave rise to the

i 1 claims occurred in that county.

12

PARTIES

13

6. Plaintiff Rosa Martinez is a 52-year-old woman living in Redwood City. California.

14 who 'receives SSI disability benefItS.

IS

7. Plaintiff Jinuny Howard is a 19-year-old man living in Santa Maria. California,

16 who received SSI disability benefits until his benefits were suspended in November 2006. Earlier

11 this year. he filed a new application for SSI disability benefits and was denied.

18

8. Plaintiff Roberta Dobbs is a 74-year-old woman living in Durant. Oklahoma, who

19 received Social Security Widow's benefits until her beneftts.were suspended in January 2006.

20

9. Plaintiff Brent A. Roderick is a 45-year-old man living in Bellingham. Washington.

21 whose application for SSI disability benefits was denied in May 2006.

22

10. Plaintiff Sharon D. Rozier is a 40-year-old woman living in Minneapolis.

23 Minnesota. who received Social Security Disability Insurance (SSOI) benefds until her benefits

24 were suspended in April 2007.

2S

11. Plaintiff Joseph Sutrynowicz is a 42-year-old man living in Miami. Florida. who

26 received SSDl benefits until his benefits were suspended in November 2008.

27

12. Defendant Michael 1. Asnue is the CommissionerofSoclal Security. As such. he

28 is charged with administering and supervising all benefit programs administered by the SSA

6S78609.2

-2-

FIIlST AMENDED ClASS ACTlON COMf'lA1NT: CASE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 4 of 41

1 nationwide, including OASDL SSJ and SVB. The Commissioner is sued in his capacity as the

2 official charged with perfonning the statutory and regulatory duties of the SSA and with

3 supervisory responsibility over the SSA and its divisions, agents, employees and representatives.

4

LEGAL FRAMEWORK

5

13. Effective August 22,1996, the Personal Responsibility and Work Opportunity

6 Reconciliation Act ("PRWORAj, Pub. L No. 104-193,42 U.S.C. § 1382(e)(4), amended the

7 Social Security Act ("the Act") to authorize the SSA to suspend or deny SSI benefits to

8 individuals fleeing to avoid prosecution or custody or confmement after conviction for a felony.

9

14. The PRWORA provides, in relevant part:

10

(4)(A) No person shall be considered an eligible individual or

, eligible SpoUK for purposes of this subchapter with respect to any

11

month if during such month the pezson is -

12

(i) fleeing to avoid prosecution, or custody or confmement aftec

conviction. under the laws of the place from which the person flees,

13

for a crime, or an attempt to commit a aime. which is a felony

under the laws of the ,place from wbich the person flees. or, in

14

jurisdictions that do not define crimes as felOnies, is punishable by

death or imprisonment for a term. exceeding 1 year regardless of the

IS

~ sentence imposed...

16 42 U.S.C § 1382(e).

17

15. In 1999, Congress authorized the Special Veterans Benefits (''SVB'') Program to

18 provide an SSI-like benefit (or certain World War II veterans residing outside the United States.

19 Congress also extended the provisions of42 U.S.C. § 1382(e)(4)(A)(i) to the SVB program.

20 except that the SVB provision applies only to felony charges within the United Slates while the 21 SSI provision applies to felony charges anywhere in the world.. 42 U.S.c. § l004(a)(2).

22

16. Effective in 2005, the Social Security Protection Act of 2004, Pub. L. No. 108-203,

23 ("SSPAj extended to the SSA's largest program. OASDL the same provision prohibiting

24 payment of benefits to individuals who are '1leeing to avoid prosecution. or custody or 2S oonfmement after conviction" for a felony. I 42 U.S.C. § 402(xXl)(A)(iv).

26

17. The same legislation prohibited the certification of payment of benefits to a person

27

28 I The OASDI provision, like the SSI provision, applies to prosecutions anywhere in the world..

6578609.2

-3-

FIlST AMENDED CUss ACTION COMPLAINT:
CASE No. 08-CV-4735 ~

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 5 of 41

1 as representative payee for OASDI, SSlor SVB benefits if that person is "fleeing to avoid

2 prosecution, or custody or confmement after conviction" for a felony. 42 U.S.C. §§

3 4O'O)(2)(C)(i)(V), l007(d)(1)(E), 1383(a)(2)(B){iii)(V).

4

18. In 2000, the SSA promulgated ftnal regulations to implement the statutory

5 provision in the SS) program. 20 C.F.R. § 416.13?9(b). Those regulations provide that the

6 suspension of benefits:

7

is effective with the fttSt day of whichever of the following months

is earlier - (i) The month in which a warrant or order .•• is issued

8

by a court or other duly authorized tribunal on the basis of an

appropriate finding that the individual - (A) Is fleeing, or has fled,

9

to avoid prosecution . . . ; (B) Is fleeing, or has fled, to avoid

custody or confinement after CIOnviction ... ; or (ii) The fttSt month

10

during which the individual fled to avoid such prosecution, fled to

avoid such custody or confmement ... if indicated in such W8lT8Jll

11

or order, or in a decision by a court or other appropriate tribunal.

12 20 C.F.R. § 416.1339(b) (emphasis added).

13

19. In 2003, the SSA promulgated final regulations to implement the statutory

14 provision in the SVB program. 20 C.F.R. § 408.81O(b). These regulations are essentially the

15 ~ame as the SSI regulations.

16

20. 'There are no implementing regulations for §§ 42 U.S.C. §§ 402(x)(1)(A)(iv),

17 405(j)(2)(C)(i)(V), lOO7(d)(I)(E), and 1383(a)(2)(B)(iii)(V).

18

SSA POLICY AND PRACTICE

19

21. Despite the plain language of the statute, and despite repeated and consistent

20 rulings to the contrary, the SSA continues to interpret the Act to mean that a person is 'lleeing to

21 av0!d prosecution. custody, or confmement" when there is an outstanding arrest warrant issued in

22 his or her ~e. even if there is no fmding of "flight" undertaken with the specific intent to avoid

. 23 prosecution and, indeed. even if that person is unaware of the outstanding a.nest warrant or the

24 pending charges.

2S

22. This interpretation has been challenged by individual 55I recipients in at least eight

26 cases brought in federal district courts in California, Maine, Michigan, Minnesota, New York.

27 Oregon and Tennessee. In each oftbese cases-save one -the CIOurts ruled thattbe SSA's

28 interpretation of the PRWORA was unlawful and either restored benefits to the benefICiaries or

6578609.2

-4-

FIUT AMeNDED CUSS ACTION CoMPLAINT: CAsE No. 08-CV -473S CW

Case 4:08..cv-04735-CW Document 41 Filed 12112/2008 Page 6 of 41

1 otherwise instructed the SSA to comply with the courts' rulings.2 In order to avoid adverse

2 precedent. however. the SSA chose in each case not to appeal the district court's decision.

3

23. The one case in which the SSA prevailed on this issue at the district-court level

4 involved a ~e fded pro se in New Yark. Fowlkn v. Adamec, 432 F.3d 90 (2d Cir. 200S). In

5 that case, the district court ruled against the plaintiff and the plaintiff appealed, creating the first

6 - and. to date, the only - opportunity for an appellate court to addn:ss the issue. The United

7 States Court of Appeals for the Second Circuit found that "'the plain language of the statute and its

8 implementing regulation" preclude the SSA from determining that a person is "fleeing to avoid

9 prosecution" based solely on the fact that there is an outstanding warrant for a person's arrest. Ill.

10 at 96. Ramer, there must be a "conscious evasion of arrest or prosecution." Ill. "[B)enefits may

11 be suspended only as of the date of a warrant or order issued by a court or other authorized
12 tribunal 011 the basis ofa finding that an in4ividuaJ hasfled or was fleeing /rom juslice" and a

13 person's flight must be ·'undertaken with a specific intent, i.e., to avoid prosecution." Ill. at 96-97

14 (emphasis added).

15

24. In an SSA Acquiescence Ruling following the Fowllces decision, the SSA

16 acknowledged that the Second Circuit had "detennioed that for 'flight' to result in a suspension of

17 benefits. it must be undertaken with the specifIC intent to avoid prosecution." SSA Acquiescence

18 Ruling D6-1(2). Apr. 6. 2006. available at http://www.ssagovIOP_HomelrulingslarJ02IAR2006-

19 01-ar-02.html. The SSA nevertheless has flouted that fmding and the Second Cirwit's further

20 recognition that the determination of '<flight" must be made by ~ court issuing the warrant.

21 requiring only that '"the Agency ... have some evidence that the individual knew his

22 apprehension was sought" Moreover, the SSA applies even this insufficient requirement only in

23

24 2 While there may be cases that are unreported, a Westlaw sean:h has identified only one instance
in which a court has upheld a denial of benefits based on the SSA's policy. and that decision was 2S overtumed on appeal in the only appellate decision on the issue to date. Fowlkes v. Adamec, 432
F.3d 90, 96-97 (2d Cir. 2005). Numerous decisions have found the SSA's policy to- be contrary 26 to the statute and the regulations. See. e.g., ill.; RejJv. Ast11le, 2008 WL 4277713 (D. Minn. Sept
15,2008); Caldwell v. Astrue, 2008 WL 2713714 (ED. Term. July 10,2(08); Blo.kely v. 27 Commn'r Soc. Sec., 330 F.Supp.2d 910 (WD. Mich. 2004); Hull v. Barnhart. 336 F.Supp.2d
1113 (D•.Or. 20(4); Thomos v. Barnhart, 2004 WL 1529280 (D. Me. June 24, 2004); Games v.
28 Bamluut. 352 F.Supp.2d 1059 (ND. Cal. 20(4).

6518609.2

-5-

FIRST AMENDED Cuss ACTION COMPVtINf: CASE No.08-CV-473' CW

Case 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 7 of 41

the three states comprising the Second Circuit.

2

25. Despite the Second CiICUit's ruling, and the agency's acknowledgement of it, the

3 SSA continues to apply an unlawful interpretation of these statutory provisions, resulting in the

4 suspension or denial of benefits - and the threatened suspension and denial of benefits - to

5 thousands of eligible recipients of and applicants for SSI, SVB and OASDI benefits and results in

6 the denial or removal of certification as representative payees of coundess nmnbers of individuals

7 seeking to serve as representative payee for a friend or family member.

8

SSA'S APPLICATION OF ITS POLICY

9

26. The SSA implements this policy through a computer matching program which

10 compares SSA's databases with various federal, state, and local warrant databases.

11

27. The SSA treats a warrant as having been issued 10 a particular benefits recipient if

12 the databases match the person·s first and last names and either (i) his or her social security

13 number or (ii) his or her date of birth.

14

CLASS ACTION ALLEGATIONS

15

28. Plaintiffs bring this action as a class action pursuant to Rule 23(b)(2) of the Federal

16 Rules of Civil Prooedure.

17

29. The class consists of:

18

All persons whose SSI, SVB or OASDI benefits have been

suspended or denied., or who are threatened with the suspension or

19

denial of such benefIts, for allegedly "fleeing 10 avoid prosecution, .

or custody or confinement after conviction" for a felony or who are

20

not permitted to serve as representative payees for SSI, SVB or

OASDI benefits for allegedly "fleeing to avoid prosecution, or

21

custody or confinement after conviction" for a felony.

22

30. The class is so numerous that joinder of aU members is impracticable. While the

23 exact number of class members can only can be obtained through appropriate discovery, on

24 information and belief, there are over one hundred thousand class members.

2S

31. There are questions of law and fact common to aU class members that predominate

26 over questions only affecting individual class members. Such questions include, among others:

27 (a) whether the SSA can determine that an individual is "fleeing to avoid prosecution. or custody

28 or confinement after conviction" for a felony under 42 U.S.C. §§ 402(x)(1)(A)(iv),

-6-

FIRST AMENDED CLAss AcnoH COMPLAINT: CUE No. 08.(:V-473' CW

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 8 of 41

1 405(j)(2)(C)(i)(V), l004(a)(2). l007(d)(1)(E), 1382(e)(4){A) or 1383(a)(2)(B)(iii)(V), absent a

2 fmding that the individual had the intent to flee for the specific purpose of either avoiding

3 prosecution for a felony or avoiding custody or confinement after conviction of a felony and that

4 the individual had the capacity to form such an interit~ and (b) whether the Commissioner has

5 engaged in a pattern of suspending or denying class members' benefits and denying or revoking

6 certification as a representative payee for allegedly "fleeing to avoid prosecution, or custody or

7 confmement after conviction" for a felony without first making a fmding as to the individual's

8 intent and capacity to form such weaL

9

32. Plaintiffs' claims are typical of the claims of all class members. and arise from the

10 same course of conduct by the Commissioner. The declaratory and injunctive relief sought is

11 common to all class members. In addition, the CommisSioner has acted and continues to act on

12 grounds generally applicable to all class members. thereby making injunctive and declaratory

13 relief appropriate to the class as a whole.

14

33. A class action is superior to other available methods for a fair and efficient

15 adjudication of this matter in that the prosecution of separate actions by individual class members

16 would unduly burden the Cow1 and create the possibility of conflicting decisions.

17

34. Plaintiffs will fairly and adequately protect the interests of the class members.

18

35. The named plaintiffs and.the proposed class are represented by Munger. Tolles &

19 Olson LlP. National Senior Citizens Law Center. Urban Justice Center. and Disability Rights

20 California, whoSe attorneys are experienced in class action litigation and will adequately

21 represent the class.

22

INDIVIDUAL PLAINTIFF ALLEGATIONS

23 Plaintiff Rosa Martigez

24

36. After working for a number of years as a nursing assistant and in retail sales.

25 Plaintiff Rosa Martinez began receiving 55! disability benefits in,November 200S. 5he suffers

26 from 5harp's syndrome (a fonn of mixed connective tissue disease), fibromyalgia, hepatitis.

27 depression, diabetes and sleep apnea and is no longer able to work. Her 55I benefit of $870 per

28 month is Ms. Martinez's only source ofincorne. Without it she would be unable to pay for her

6S78609.2

-7-

FIRST AMENDED Cl.AS$ AcTlOl'l COMPLAINT; CAsE No. 08-CV-4735 CW

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 9 of 41

1 basic living expenses.

2

37. On December 10,2007. an SSA employee banded Ms. Martinez a letter (attached

3 hereto as Exhibit A) stating that the agency would be suspending her SSt benefits effective

4 January 2008 because "the law prohibits us from paying Supplemental Security Income to

5 persons who have an outstanding arrest warrant for a crime which is a felony.It The notice went

6 on to state that there was an outstanding arrest warrant for a felony drug crime issued in her name

7 by the Miami Dade Police Department in florida on July 14, 1980. Ms. Martinez explained that

8 she had never been to Miami and had never been arrested or charged with a crime and that this

9 had to be a mistake. The SSA claims representative lold Ms. Martinez that this could not be

10 appealed and refused to give her an appeal form and told her she would simply have to get proof

11 that there was DO wamml

12

38. Ms. Martinez obtained an SSA appeal form at the Legal Aid Society of San Mateo

13 County ("Legal Aid") and on December 11.2007, the day after she received notice of the

14 proposed suspension. Ms. Martinez filed a Request for Reconsideration at the local SSA office to

15 appeal the proposed suspension (attached hereto as Exhibit B). In the reconsideration request she

16 stated. "I have never been in Miami Dade," and requested that the reconsideration be by means of

17 a fonnal conference. SSA regulations require.that she be afforded the opportunity for a formal

18 conference where sbe would have the right to confront adverse witnesses and request that

19 subpoenas be issued for relevant evidence and witnesseS. 20 C.F.R. § 416.1413(c).

20

39. On the very same day. SSA issued a Notice of Reconsideration affuming th~ initial

21 determination (attached hereto as Exhibit C). The notice stated. "In order for Social Security to

22 reinstate your benefits you must provide the original docurilent which lists The Warrant Number.

23 The issuing agency/county. and the date the warrant was rescinded or satisfied. If you believe the

24 warrant was issued in error. Social Security must have an original document that states the
2S wmani was issued in error and does not pertain to you at all. It must state the date the warrant

26 was rescinded. This is the only way this case can be resolved."

27

40. On December 19.2007. Ms. Martinez filed a request for an administrative law

28 judge hearing.

65'8609.2

-8~

FIRST AMENDED CLASS ACTION COMPl..AINT;
<:AsENCI. 08-CV-473S CW

ase 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 10 of 41

1

41. Ms. Martinez did not receive her scheduled SSI benefits at the beginning of January

2 and February 2008. As a result she was left without any income and managed to get by only with

3 loans from her brother and friends. It was only through the intervention of U.S. Representative

4 Anna Eshoo that her benefits were restored later in february.

5

42. On April 15. 2008, the SSA sent Ms. Martinez another notice similar to the

6 December notice stating that they planned to stop her SSI payments beginning in May 2008.

7 Attorney Christopher Douglas of the Legal Aid Society of San Mateo County requested

8 recOnsideration of this determination within the ten-day period for receiving continued benefits

9 and requested that the appeal be by means of a fonna! conference.

10

43. Nonetheless. the SSA suspended Ms. Martinez's benefits on May 1,2008. On May

11 S, 2008, Ms. Martinez and her attorney went to the Redwood City SSA office to demand that she

12 receive her SSI benefits for May and that she be given a formal conference prior to suspension of

13 her benefItS. After considerable dispute as to whether she had a right to a fonnal conference or

14 whether witnesses could be subpoenaed, the claims representative spoke with her supervisor and

15 agreed that Ms. Martinez had not received due process and agreed to issue the SSI payment for

16 May. The SSA representative reiterated that Ms. Martinez needed to provide a statement on the 17 1ette~ead of Miami Dade County to the effect that plaintiff was not the person they were seeking.

18

44. No formal conference was ever scheduled or held and no Administrative Law ludge

19 hearing was ever scheduled or held.

20

45. The SSA sent a Notice of Reconsideration dated August 25. 2008 in response to the

21 Decem~r 11. 2001 appeal denying her request for reconsideration and suspending her benefits

22 effective November I, 2005. The notice stated that Ms. Martinez had failed to provide evidence

23 that she was not the Rosa Martinez who was wanted in Miami. This was followed by a Notice of

24 overpayment dated September 2, 2008 stating that she had been overpaid in the amount of

25 $27,365.50 and demanding that she repay that amount.

26

46. Ms. Martinez did not receive her SSI benefits as scheduled in October 2008 and

27 was left without any income and no savings to meet her basic needs.

28

47. After the original complaint in this action was flied, Ms. Martinez received a letter

6578609.2

-9-

FIRST AMENDED ClASS AcnON COMPLAINT: CASE No. 08-CV-4735 CW

ase 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 11 of 41

from the SSA District office dated October 20. 2008, stating that her SSI benefits were being

2 resumed based on ber allegation that she is not the person named in the warrant, but also slating

3 that SSA would continue to investigate the matter.

4

48. The October 20 letter also told her that if she was in dire need sbe could come uUo

5 the office and request an immediate payment. She went into the office and received an immediate

6 payment in the amount of the full monthly benefit of $870.

7

49. Ms. Martinez received a "Notice of Change in Payment" indicating that she was

8 entitled to payment from November 2005 on because "you either no longer have an outstanding

9 arrest warrant ... or you have established a good reason for not satisfying the warrant." This was

lOin spite of the fact that the 1980 arrest warrant that served as the basis for suspending benefits in

11 the flISt place was still outstanding and Ms. Martinez was unable to.provide any reason why the

12 warrant was not satisfied since she was not the person named in the wanant.

13

50. In a further complication. SSA sent Ms. Martinez a letter dated November 13,

14 2008, stating "SSA has spoken with you in pelSon and via written con-espondence regarding the

15 need to determine whether you are properly eligible for continued SSI payments given the
16 outstanding warrant for a drug felony charge issued in your name." The letter went on to request

17 that she go to the Redwood City District Office to be fingerprinted so her fingeIprints could be

18 checked with the Dade County authorities.

19

51. Ms. Martinez received her November and December 2008 benefits, but continues

20 to suffer significant stress and anxiety as the result of the repeated threaIs to suspend. and the

21 actual suspensions of, her SSI benefits. Since first receiving notice of the suspension of her

22 benefits. she has suffered a deepening depression. She has also had trouble sleeping and her

23 appetite bas decreased, causing her to lose weight.

24

52. Ms. Martinez has never been to Miami Dade County and was living with her father

2S in Chicago, Illinois, at the time the warrant was issued, while her husband. Gregg Sharp, was in

26 basic training for the United States Army. She used her husband's name at the time and was
27 known as Rosa M. Sharp. She continued to use that name - even after her divorce - until she

28 became a United States citizen in 2000.

-10-

PlRST AMENDED CLASS ACTION CoMPlAIHT: CAsE No. 08-CV-473S CW

ase 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 12 of 41

1 Plaintiff Jimmy Howard

2

53. Plaintiff Jimmy Howard is 19 years old and resides in Santa Maria. CalifOOlia.

3 where he lives in a group home for individuals with developmental disabilities. Mr. Howard has

. 4 been diagnosed with mental retardation and other mental impairments.

5

54. Mr. Howard received SSI benefits as a child based on his disabilities. He is a client

6 of the Tri-Counties Regional Center ("TCRC"), which contracts with the State of California to

7 provide services to children and adults with developmental disabilities. Because he was a minor

8 at the time and could not manage his own funds. TCRC served as his representative payee and

9 received all payments and communications on his behalf.

10

55. In a notice dated October 17,2006, the SSAnotified TCRC that Mr. Howard's

11 benefits would be suspended because ~f a 2001 arrest warrant from Butler County, Ohio,

12 stemming from an assault charge. The notice went on to say. "The law prohibits us from paying

. 13 Social Security benefits to individuals who have an outstanding arrest W8Itant for a crime which

14 is a felony." The notice also stated that he needed to pay back an overpayment of $26,826 within

15 30 days. The notice made no mention of the right to continuation of benefits pending appeal and

16 made no mention of the right to a fonnal conference or an informal conference if the payee chose

17 to appeal on his behalf. Mr. Howard did not receive a copy of the notice. TCRC did not appeal

18 and his benefItS ceased as of November 2006.

19

56. After Mr. Howard turned 18. he was referred to Katherine Mouarella. an attorney

20 with the Office of Clients Rights Advocacy in Santa Barbara. Ms. Mottarella proceeded to gather

21 information with respect to the charges and related events in Ohio. On October 22. 2007. Ms.

22 Mottarella filed a request for reconsideration of the suspension together with a request that the

23 SSA find good cause for missing the 60 day deadline for appeal pursuant to 20 C.F.R. § 416.1411

24 based on Mr. Howard's mental limitations and the misstatement of the law in the October 2006

25 notice.

26

57. On March 7. 2008, Mr. Neil Ohlenbmp, the District Manager of the SSA office in

27 Santa Barbara sent Ms. Mottarella a letter stating that the request for reconsideration was not

28

- 11-

FIRST AMENDED CLAss AcnON COMPWHr.
C.UE No. 08<V473S cw

ase 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 13 of 41

timely and that good cause for late filing had not been established. The letter contained no notice

2 of appeal rights.

3

58. On May 1. 2008, attorney MottareUa filed a request for an administrative law judge

4 bearing to review the March 2008 detennination. No hearing has yet been scheduled

S

59. On March 31, 2008, Mr. Howard. with the assistance of Ms. Mottarella. filed a new

6 SSI application which was denied in a notice dated June 18.2008, stating "We cannot pay you

7 SSI payments for March 2008 on because the law prohibilS us from paying Supplemental

8 Security Income to individuals who have an outstanding arrest.warrant for a felony."

9

60. A request for reconsideration of the denial was flied on July 20.2008, stating as the

10 reason for appeal: "I was not fleeing from Ohio. My morher took me to California." So far there

11 has been no response to this request for reconsideration.

12

61. At the time of the charges in this case, Mr. Howard was twelve years old and living

13 with his famiJy in a tmler park in Butler County, Ohio, having been brought there recently by his

14 mother and stepfather to be with the stepfather's family. He did not get along with the stepfather.

15 According to the records of the Butler County Juvenile ColD't, Mr. Howard was reported as a

16 possible runaway and was found at a food market on September 23. 2001. He was charged as a

17 delinquent under Ohio law for acts that would constitute criminal damaging, theft and breaking

18 and entering. According to a complaint filed in Juvenile Court, on September 1S. 2001, while he

19 was being held at the detention center, "Howard kicked staff member Joyana Randolph while he

20 was being mechanically restrained." The court records state that at the time of this event he was

21 four feet seven inches tall and weighed 85 pounds. He was once again cbarged as a delinquent

22 child, this time for an assault. It would be a felony under Ohio law if it were committed by an

23 adult, but not when the alleged wrongdoer is a twelve-year-old.

24

62. On October 1, 2001, Mr. Howard appeared in Juvenile Court and was ordered

25 released from detention and a competency evaluation was ordered to determine his ability to

26 assist with his defense. Sometime between that appearance and November 16,2001, Mr.

27 Howard's mother broke up with his stepfather and moved to C~ifomia. taking her twelve-year-

28 old son with her. Mr. Howard did not appear in court on November 16.2001, and a bench

65786092

-12-

FlJtsT AMENO£I) CLASS ACTION COMPLAINr. CAsE No. O&-CV473' CW

Case 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 14 of 41

warrant was issued.

2

63. TCRe has been paying the cost of Mr. Howard's group home with funds from the

3 California Medi-Cal program. However, Mr. Howard has been showing considerable progress

4 lately and has been successfully working in a supported employment program. He appears to be

5 ready to move to a more independent living envirorunent, but is financially unable to do so

6 without his SSI benefits.

7

64. After the original complaint in this action was flied, SSA sent Mr. Howard and his

8 attorney a notice dated November 18,2008. whiclI stated "We have reviewed the information in

9 Social Security records about your outstanding arrest warrant along with any additional

10 infonnation you submitted. We have decided we can you Supplemental Security Income (SSI)

11 [sic]. We are paying you for the following reason: The charges related to the criminal offense

12 were dismissed." The notice continued to the effect that his case would be reviewed to determine

13 the amount of his next SSI payment and when he would receive it.

14

65. After receiving the November 18 notice, Mr. Howard's attorney then contacted the

15 court in Ohio and confmned that the charges bad in fact Peen dismissed on October 27,2008.

16

66. Neither Mr. Howard, nor his attorney, were aware of any effort being made on his

17 behalf to secure dismissal of the charges in Ohio.

18

67. AlthoUgb the November 18 notice indicates that SSA will pay SS( benefits to Mr.

19 Howard. it is still not clear for what period benefits will be paid.

20 Plaintiff Roberta Dobbs

21

68. Plaintiff Roberta Dobbs is a 74-year-old woman with a terminal diagnosis. She has

22 end-stage lung disease I chronic obstructive pulmonary disease (COPD), is on oxygen 24 hours a

23 day. and has diabetes, depression. and a history of heart attack and stroke. She requires a walker

24 to get around and can only do so with assistance. Her doctors say she cannot travel any distance.

2S

69. After woddng for a number of yeaIS as a nurse and helping to run a screen and door

26 repair shop with her husband, Ms. Dobbs began receiving Social Security Disability benefits in 27 1996. After her husband died in 1999. Ms. Dobbs began receiving widow's benefits. After

28 suffering a heart attack: and stroke, she decided to move to Oklahoma to live with her stepfather.

6S78609.2

-13 -

FIRST AMENOEO ClASS AcnON COMJILAIN'r.
CAsE No. 08<V-473S CW

ase 4:08-cv-Q4735-CW Document 41 Filed 12/12/2008 Page 15 of 41

1 On September 28,2001, Ms. Dobbs finished moving her belongings out of her home in Joshua

2 Tree, California, placed everything in a van and a U-Haul, checked into a motel, and was

3 prepared to leave for Oldahoma the following morning. That evening Ms. Dobbs. her stepfather.

4 and a friend of the family went to dinner. Ms. Dobbs made an improper left tum and collided

5 with another vehicle moving at an excessive rate of speed. She was given a field sobriety test and

6 questioned by die police who took her license. She was transported to a hospital where another

7 blood sample was taken and where she remained overnight.

8

70. In light of the accident, Ms. Dobbs deferred the move to Oklahoma and remained in

9 the motel for a few weeks while she waited for her stepfather's injuries to heal. During this time

10 she also retained an attorney to represent her to get her liCense back..

11

71. On January 29, 2002, more than three months after Ms. Dobbs had moved to

12 Oklahoma, the California Department of Motor Vehicles issued an order fmding that her blood

13 aJcohollevel at the time of the accident was not at or above 0.08% and setting aside the

14 suspen.$ion of her license. They subsequently returned her license to her. Ms. Dobbs thought she

15 was vindicated and that this disposed of the matter since she had not been advised of any criminal

16 prosecution.

17

72. Ms. Dobbs has resided continuously in Durant, Oklahoma, since October 2001.

18 although she did go back to California for a month or a month and a half when her great

19 granddaughter was born in 2002. In the m~me. ber health continued to deteriorate. and she

20 underwent numerous hospitalizations.

21

73. During one of those periods of hospitalization. when she was being treated for

22 pneumonia. renal failure and blood infections. SSA sent a notk:e dated December 14. 2005, to her

23 home informing her that SSA planned to stop paying her benefits because .'the law prohibits us

24 from paying Social Security bcneftts to indivi~s who have an outstanding arrest warrant for a

25 crime which is a felony...or who have violated a condition of probation or parole under Federal

26 or State law." The notice went on to state that there was an outstanding arrest warrant for a

27 felony crime or a probation or parole violation issued in her name by the San Bernardino County

28 Sheriff's Offace on November 28,2001. The notice also outlined the bases for a "good cause"

6578601U

- 14-

FIRST AMEHoED a..us ACl10N COMI'I.AINr,
CASE No. OS-CV473S CW

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 16 of 41

1 exception to the proposed benefit suspension and stated that if they did not bear from her in 30

2 days they would assume the infonnalion was correct and send her a notice of suspension. Ms.

3 Dobbs did not see the notice until a week or so after her discharge from the hospital the following

4 month. This was the first indication she had of any criminal charges resulting from the

5 September 2001 accident. In the last half of January 2006, Ms. Dobbs took the notice to her local

6 SSA office in Durant, Oklahoma. to ask for an explanation. She was told that her benefits were

7 being suspended because there were charges pending against her. When Ms. Dobbs inquired

8 about the charges, the representative she was speaking with told her, "If you don't know what you

9 did, I can't tell you." Ms. Dobbs asked how she could contest the suspension. She was told the

10 time for doing so had already passed so she would need to write down on a piece of paper the

11 reason she had missed the timeframe. Ms. Dobbs indicated on the paper she was given that she

12 had not responded earlier because she had been in the hospital when the notice was sent

13

74. SSA sent Ms. Dobbs another notice dated January 25, 2006. which stated that her

14 benefits were suspended effective immediately "because you have an outstanding arrest warrant

15 for a felony crime" and that she had an overpayment in the amount of $11,802.70 for benefits

16 paid in 2005. The notice stated she had 60 days to appeal and told her to contact the San

17 Bernardino County Sheriff's offICe, which it described as being located in Springfield,

18 Massachusetts, for further information about the warrant.

19

75. On February 10,2006, Ms. Dobbs went to the SSA office again to file a request for

20 reconsideration. She was told she was too,late and could not appeal. Instead of giving her the

21 reconsideration {om, she was given a (om entided "Statement of Claimant or Other Person" on

22 which she indicated why she could not file earlier. She handed it in to a woman named Phyllis at
23 the Durant SSA office. In spite of these timely efforts, no appeal of the suspension was ever

24 processed.

25

76. On August 18,2008, Ms. Dobbs returned to the SSA office in Durant with a

26 volunteer from her church to apply for reinstatement of her benefits. She was told that she could

27 not reapply, and they refused to process her request. On August 25, 2008, Ms Dobbs and a

28 lawyer from Legal Aid Services of Oklahoma went to the Hugo, Oklahoma SSA office to attempt

- 15-

FIRST AMENDED Cuss ACnON COMPlAINt'; CAs£No, ()8.CV-4135 CW

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 17 of 41

1 to reapply for benefits. They were told that because her benefits had been suspended. not

2 tenninated, applying for benefits again would do no good and that any new application would be

3 considered a dupJicate application and would be rejected.

4

71. On August 2S. 2008. Angelia McDonald-Chambless, an elderlaw paralegal with

5 Legal Aid Services of OkJahoma. wrote to the San Bernardino County District Attorney outlining

6 the circumstances surrounding the accident and DMV proceedings and desaibing Ms. Dobbs'

1 fragile health status. On September 17. 2008. on motion of the District Attorney. the charges

8 were dismissed and the warrant was withdrawn.

9

18. Ms. Dobbs' representatives at Legal Aid Services of O~ahoma presented the court

10 order to the SSA office expecting benefits to be restored. However. they were initially told that a

11 court order of dismissal is not good enough and that they needed a letter from the prosecutor.

12 Fmally. SSA sent Ms. Dobbs a notice dated October 9.2008. stating that her benefits would be

13 restored but that she would not receive any payments until after they had R:covemi all the .

14 benefits paid her for 200S. The notice told her she could expect her first check in the amount of

IS $66.30 on September 3. 2009. and that theR:after she would receive monthly payments of

16 $1.079.00. The notice stated she had 60 days to appeal.

11

79. On October 31. 2008, Ms. Dobbs' attorney at Legal Aid Services, Dan Sanders,

18 flied ~ Request for Reconsideration to appeal the October 9 determination. In his appeal he

19 asserted that Ms. Dobbs was not fleeing to avoid prosecutiOn. The SSA Service Center in Kansas

20 City, Missouri. sent a notice dated November 11. 2008. dismissing the appeal as not timely

21 because it was not sent within 60 days of the January 25. 2006 suspension notice.

22

SO. Ms. Dobbs has not received any Social Security benefits for all of 2006, 2007. and

23 2008. Since losing benefits she has been in the hospital several times and has spent time in a

24 rehabilit8tion hospital and a nursing borne. She has depleted the modest savings that she and her

2S husband bad accwnuJated in nearly 50 years of work and has been forced to live on Oklahoma

26 Old Age Assistance in the amount of $46 per month, assistance from her daughter in Nevada,

27 sporadic payments from an asbestos settlement. help from friends and neighbors and meals

28 deJivered by Meals on Wheels.

- 16-

FIRST AMENDED CLASS ACTtON COMPlAINT:
cw CAsE No. 08-CV-473~

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 18 of41

81. The loss of benefits has caused Ms. Dobbs. whose health was already

2 compromised. significant stress and anxiety. She is constantly worried about how she will

3 support herself without her benefits and is saddened by having to depend on others and on the

4 prospca of another Christmas without any reliable source of income.

S Plaintiff Brent A. Roderick

6

82. Plaintiff Brent A. Roderick is a 45-year-old man residing in Bellingham.

7 Washington. whose application for SSI Disability benefitS was denied on May 2. 2006. because

8 of an outstanding arrest warrant from San Luis Obispo. California. dating back to 1987. He

9 suffers fro~ bipolar disorder. Hepatitis C and several other impairments.

10

83. 10 1987. at the age of 23. Mr. Roderick decided to move from San Luis Obispo.

11 where he then resided. to Bellingham to start a new life. He borrowed a Honda Civic without

12 advising the owner that his intention was to relocate to another state and drove the car to

.13 Washington. When the car was not returned. the owner notified the police and charges were filed

14 against Mr. Roderick in San Luis Obispo County. for unlawful taking of a vehicle.

IS

84. Police in Whatcom County. Washington later ran a check on the vehicle and

16 discovered that it had been reported stolen in California. They then charged Mr. Roderick with .

17 possession of stolen property.

18

85. Mr. Roderick pleaded guilty to the charges in Whalcom County and was sentenced

19 on November 19. 1987. The public defender told him that the California prosecutor agreed that

20 the charges in California would be dismissed if he pleaded guilty in Washington since it would be

21 double jeopardy to prosecute him there after the conviction in Washington. He never heard

22 anything more about the charges in Califomia until his SSI application was denied in 2006.

23

86. After a staff J'efS<?D from the Whatcom County Public Defenders' office in

24 Bellingham. Washington. contacted the San Luis Obispo County District Attorney regarding the

25 failure to dismiss the California charges. the Disttict Attorney moved to dismiss the charges on

26 gI'OlUlds of double jeopardy and the Superior Court dismissed the charges on January 10. 2007.

27

87. Mr. Roderick filed timely appeals of the SSI denial through the administrative

28 appeals process. He received a decision of the Social Security Appeals Council dated October 29.

- 17-

FIRST AMENDED ClAss ACnON aJMPLAINr. CUE NO. 08-CV4735 CW

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 19 of 41

1 2008, affinning the initial determination to deny his claim and has thus exhausted all

2 administrative remedies.

3

88. The Appeals Council decision (attached hereto as Exhibit D) rejected an argument

4 based on the decision in Fowlkes II. Adamec, 432 F.3d 90 (2nd Cir. 2005), noting that the Social

5 Security Acquiescence Ruling (AR 06-1(2» applies only in the Second Circuit and stating that

6 the same ruling explicitly states that in all other jurisdictions the "Social Security Act will be

7 interpreted to mean that a person is 'fleeing to avoid prosecution ... ' when a person has an

8 outstanding warrant for his arrest, even if that person is unaware of that warrant."

9

89. After receiving the dismissal of the California charges, Mr. Roderick. filed another

10 S5I application. This time the application was denied on disability grounds. That denial has been

It appealed and is now awaiting an administrative law judge hearing.

12 PlaiutiffSharon D. Rozier

13

90. Plaintiff Sharon D. Rozier lived in Orange County. California until 2001 when she

14 decided to end an abusive relationship and moved to Arizona with her three children. She lived

15 in Arizona continuously from 2001 to 2006.

16

91. In March 2006. Ms. Rozier was in a disasttous motor vehicle accident in which her

17 car went over a cliff and she was ejected from the vehicle. As a result of the accident she suffered

18 a traumatic brain injury and broken bones and was left as a paraplegic who is unable to care for

19 herself and who has great difficulty speaking and who also has severe memory loss.

20

92. After she was discharged from the hospital, Ms. Rozier was sent to a nursing home

21 where she remained until August 2006 when she was taken in by her sister. Veronica Rozier

22 Malone, who resides in Gary, Indiana. In addition to taking on the care of her sister, Ms. Malone

23 was holding down two jobs in ottier to make ends meet Ms. Rozier began to receive SSDI

24 benefits, beginning around September 2006. The benefits were her only inCQme. Ms. Malone

25 served'as Ms. Rozier's representative payee.

26

93. In February 2007, SSA sent an advance notice to Ms. Malone stating that the

27 agency would be suspending Ms. Rozier's benefits because "the law prohibits us from paying

28 Social Security benefltS to individuals who have an outstanding arrest warrant for a crime tbat is a

- 18-

FIRST AM£NoeJ) CLAss ACTION COMPt.AIH'r. CAsENo. 08-cY -4735 CW

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 20 of 41

1 felony [...}." The notice indicated that an arrest warrant had been issued in Orange County,

2 California on January 20, 2004. Until that time, Ms. Rozier did not know of any criminal charges

3 outstanding against her in California.

4

94. Ms. Rozier does not have a suspension notice containing appeal rights and does not

5 know whether or not such a notice was sent. However. she did Dot receive any benefits in April

6 2007 and has not received any benefits since that time.

7

95. According to the court docket in Orange County. the criminal complaint in the case

g was filed on January 20, 2004, more than two years after Ms. Rozier had left California. The
9 complaint lists her address as Cypress, California, niaking it unlikely that she could have been

10 notified of the charges. The offense was listed as a violation of California Welfare & Institutions

11 Code 10980(c)(2) which concerns misrepresentations resulting in tbe receipt ¢ public benefits in

12 an amount in excess of $400.

13

96. After Ms. Malone received the SSA notice, efforts were made to get the warrant

14 vacated and some medical records were sent to the comt in California. However, in lune 2007.

15 the court declined to withdraw the warrant.

16

97. Because of her medical condition. Ms. Rozier has been unable to do anything on

17 her own to appeal or otherwise contest the suspension of her benefits. She had to rely entirely on

18 the efforts of her sister, who was simUltaneously working two full-time jobs. and on her mother.

19

98. , M.s. Rozier's mother. Yvonne Rozier, contacted SSA in August 2008 in an attempt

20 to appeal the denial of benefits. An agency representative infonned Yvonne Rozier that the only

21 way to restore her daughter's benefits was to get the wmant dismissed in California. The

22 representative did not give her any additional information about appeal rights or ask,whether Ms.

23 Rozier had good cause for failing to appeal the denial of benefits.

24

99. Ms. Rozier's ssm be~fits were her only source of income, and she now has no

25 income and no savings to meet her basic needs. She also has no means of supporting her two

, 26 minor children. who are in the care of her oldest daughter who remains in Arizona. In order to

21 obtain needed medical care, Ms. Rozier moved in 2008 to the home of a different sister, Tannitte

28 Shufford, in Minneapolis, Minnesota. Ms. ShuffOld was already caring for two sons with mental

6578609.1

- 19-

FIRST AMEHoED Cl.A.SS AcnON COMJ'lAIN'r. CASE No. 08-CV-473S CW

Case4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 21 of41

1 disabilities and now has the added burden of caring for her sister.

2 Plaigtiff Josepb SutryDOwig

3

100. Plaintiff Joseph Sutrynowicz is a 42-year-old man who began receiving SSDI

4 benefits around 2004. He has bipolar disorder and is recovering from alcoholism. He has a

5 learning disability and received only a seventh-grade education. Mr. Sutrynowicz worked off and

6 on as a painter of commuter airplanes and automobiles from the time he was 17 until he began

7 receiving disability benefits. He lives alone in a small efficiency apanment in lhe Little Havana

8 section of Miami. Florida.

9

101. SSA sent a notice dated September 21, 2008, to Mr. Sutrynowicz's representative

10 payee and landlord, Jorge Chacon. indicating that the SSA planned to suspend Mr. Sutrynowicz's

11 benefits because ''the law prohibits us from paying Social Security benefits to individuals who

12 have an outstanding arrest warrant for a crime which is a felony...or who have violated a

13 condition of probation or parole under Federal or State law." The notice went on to state tha

14 there was an outstanoing arrest warrant for a felony crime or a probation or parole violation

IS issued in his name in Abilene, Texas, on November 20, 1996. The notice stated that if they did

16 not hear from him within 30 days. his benefits would be suspended. The notice also listed

17 circumstances under which his benefits could be continued including if the charges were

18 dismissed or the warrant was withdrawn. He went to the SSA office upon receiving the

19 September 21 notice and indicated he would be contacting the authorities in Abilene.

20 Nevertheless, SSA sent him a notice dated October 30. 2008. indicating his benefits would be

21 suspended immediately ~ that he needed to pay back an overpayment in the amount of

22 $42,876.70 within 30 days for "benefits paid from January 200S through September 2008.

23

102. Upon receiving the notice, Mr. Sutryoowicz was unaware of any charges pending

24 agaiilst him in Abilene. Texas. Mr. Sutrynowicz had spent time in Abilene, working as a painter

2S of commuter airplanes for STS Holding Group. As an employee of STS Holding Group. he was

26 sent across the COlDltry working on jobs for a few months at a time. He worked in Abilene for

27 approximately six months. One day he was told the job was finished, so he packed his lhings and

28 moved back to Miami, Florida, (his home base) the next day.

6578609.2

-20-

FIRST AMENDED CUss Ac110MCONI'IAIHT;
CAsE No. 08-CV4735 CW

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 22 of 41

1

103. Mr. Sutrynowicz contacted the Taylor County Sheaiff's Office when be received

2 the notice from the SSA. The offICe infonned him ~t the warrant was for charges related to an

3 alleged bounced check at a grocery store in Abilene. Mr. Sutrynowicz did frequent the grocery

4 store while working in Abilen~ but had no previous knowledge of any allegation-that he had

5 . bOlmceci a check at the store. He was infonned that he would need to pay over $570 in fees and

6 charges to clear the warrant. Mr. Sutrynowicz does not have the money to pay the charges and 7 fees or travel back to Abilene. Texas.

8

104. Mr. Sutrynowicz did not receive his bericfits that nonnally would be paid in

9 November and December 2008.

10

105. Mr. Sutrynowicz is at risk of lOSing his housing if his benefits are'not restored. He

11 bas no other income. His representative pay~ Mr. Chacon, is also his landlord. So far, Mr.

12 Chacon has allowed Mr. Sutrynowicz to stay in the apartment without paying rent. but Mr.

13 Sutrynowicz is not sure how long that will last. Mr. Sutrynowicz is currently getting food stamp

14 assistance. but is orherwise scraping to get by_ He spends most days in Alcoholics Anonymous

IS meetings, taking advantage of the emotional support as weU as the free food and coffee. He has

16 experienced great stress and anxiety as a result of the loss of his benefits.

17

FIRST CAUSE OF ACTION

18

FOIt DECLARATORY AND INJUNCTIVE RELIEF FOR.

19

VIOLATION OF THE SOCIAL SECUIUTY ACT

AND ITS IMPLEMENTING REGULATIONS

20 106. Paragraphs 1-106 are each re-alleged and incorporated as if fully set forth herein.

21
107. The Social Security Act and the regulations promulgated thereunder. 42 U.S.C. §§

22 402(xXIXA)(iv).40S(j)(2XC)(iXV). l004(8X2), lOO7(dXIXE), 1382(e)(4)(A)(i).

23 1383(aX2)(BXiii)(V) and 20 C.F.R. § 416.1339(b), prohibit the Commissioner from suspending

24 or denying benefits or refusing to certify an individual as 8 representative payee for allegedly

25
.fleeing to avoid felony prosecution, or custody or confmement after conviction of 8 felony. on the

26 basis of an outstanding arrest warrant without a rIDding by a court that the claimant is "'fleeing"

27 with the specific intent to avoid prosecution. custody. or confmement.

28

6S78609.2

-21-

FIRST AMENDED ClAss AcT10N COMPUINT;
cw CAsE No. 08-CV-473~

ase 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 23 of 41

1

108. By failing to make such a finding, the Commissioner has acted and continues to act

2 in violation of the Social Security Act and the regulations promulgated thereunder.

3

SECOND CAUSE OF ACTION

4

MANDAMUS

5

109. Paragraphs 1-109 are each re-alleged and incorporated as if fully set forth herein.

6

110. The Commissioner bas a non-discretionary statutory obligation to malee benefit

7 detenninations in accordance with the Social Security Act, as amended, and its implementing

8 regulations. Among other things. the Commissioner is required to award benefits to applicants

9 who are qualified tmder the governing statutory provisions and regulations. In the event that

10 Plaintiffs do not otherwise have an adequate legal remedy, mandamus should issue compelling

11 the Commissioner immediately to: (1) cease denying or suspending benefits or denying

12 certifications as representative payees under 42 U.S.C. §§ 402(x)(1)(A)(iv), 4OSG)(2)(C)(i)(V),

13 l004(a)(2}, l007(d)(1)(E), 1382(e)(4)(A) and 1383(a)(2)(B)(iii)(V), without fust determining that

14 the individual was fleeing with the specific intent to avoid proseaJtion or custody or confinement

15 after conviction for a felony; and (2) vacate all prior such suspensions and denials of benefits or

16 denials of certification as representative payee, in which there was no prior detennination that the

17 individual was fleeing with the specific intent of avoiding prosecution or custody or confme for a

18 felony.

19

PRAYER FOR RELIEF

20

111. WHEREFORE Plaintiffs respectfully request that the Court:

21

a. Assume jUrisdiction over this matter;

22

b. Certify this action as a class action;

23

c. Declare that Defendant's interpretation and implementation of 42 U.S.C.

24

§§ 402(x)(1)(A)(iv), 4OS(j}(2)(C)(i)(V), 1004(a)(2).

25

1001(d)(1)(E),1382(e)(4)(A) and 1383(a)(2)(B)(iii)(V) are unlawful;

26

d. Preliminarily and pennanentJy enjoin the Commissioner from continuing to

27

implement 42 U.S.C. §§ 402(x)(1)(AXiv), 405G)(2)(C)(i)(V), l004(a)(2),

28

lOO7(d)(1)(E), 1382(e)(4)(A) and 1383(a)(2)(B)(iii)(V) in a manner

6fl8609.2

-22-

fiRST AMENDED ClAss ACTION COMPlAINT: CASE No. 08-CV-473S CW

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 24 of 41

I 2 3 4
5 6
7 8 9 10 11 12 13 14
IS 16 17 18
19 20 21 22 23 24 2S 26 27 28
6578609.2

inconsistent with the law;

e. Preliminarily and permanently enjoin the Commissioner from muing

determinations to suspend or deny SSI, SVB and OASDI benefItS or to deny

cenification as a representative payee for such benefiu pursuant to 42 U.s.C.

§§ 402(x)(1XAXiv).405(j)(2)(CXi)(V), l004(a)(2), lOO7(dXI)(E),

1382(e)(4XA) and 1383(aX2)(B)(iiiXV), based solely upon the existence of

an arrest warrant and absent a finding that an individual is fleeing with the

specific intent to avoid prosecution or custody or confinement after

conviction for a felony;

f. Preliminarily and permanently enjoin the Commissioner immediately to

redetermine and re-adjudicate all determinations to suspend or deny SSI,

SVB, and OASDI benefits and .all detenninations to deny certification as

representati~e payee for such benefits made pursuant to 42 U.S.C.
n 402(xXl)(A)(iv), 4O'(j)(2)(C)(i)(V), l004(a)(2), lOO7(d)(I)(E),

1382(e)(4)(A) and 1383(a)(2)(8Xiii)(V), and to reverse all such

determinations unless made on the basis of a finding by a court that the

individual was fleeing with the specific intent to avoid prosecution or custody

or confinement after conviction for a felony;

g. Issue a writ of mandamus compelling the Commissioner immediately to: (1)

cease denying or suspending benefiu or denying certifications as

representative payeees under 42 U.S.C. §§ 402(xXl)(A)(iv).

4OS(jX2)(C)(i)(V), lOO4(aX2), l007(dXl)(E), 1382(eX4)(A) and

1383(a)(2)(B)(iii)(V), without first determining that the individual was

fleeing with the specific intent to avoid prosecution or custody or

confinement after Conviction for a felony, and (2) vacate all prior such

suspeusions and denials of benefits and denials of certification as

representative payee. in which there was no prior detennination that the

individual was fleeing with the specific intent of avoiding prosecution or

- 23-

FIRST AMalomCtAss ACTION CoMPl.AItn: CAse No. 08-CV413!i CW

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 25 of 41

1

custody or confme for a felony;

2

h. Award Plaintiffs costs, disbursements. and reasonable attorneys' fees,

3

including, without limitation, the costs and fees authorized by 28 U.S.C.

4

§ 2412;

5

1. G~t Plaintiffs such othCl' and further relief as the Court may find just,

6

proper, and equitable.

7 DATED: December 12.2008
8
9

MUNGER, TOLLES & OLSON UP DAVIDH.FRY

10

11

12 QfCQUDsel:
13 WILLIAM G. LIENHARD wlienhard@urbaojustice.org
14 EMILIA SICIliA esicilia@urbanjustice.org'
15 JENNIFER PARISH jparish@urbaojustice.org
16 URBAN JUSTICE CENTER 123 William Street, 16th Fl.
17 New York. NY 10038 Tel.: (646) 602-5668
18 Fax: (212) 533-4598
19 MARILYN HOLLE (SBN 61530) marilyn.holle@disabilityrlghtsca.org
20 DISABILITY RIGHTS CALIFORNIA 3580 Wilshire Blvd. Suite 902
21 Los Angeles, CA 90010-2522 Tel: (213) 427-ff147
22 Fax: (213) 427-8767
23

CHRISTOPHER A. DOUGLAS (SBN 239556) cdouglas@)egalaidsmc.org
M. STACEY HAWVER (SBN 146012) mshawver@legalaidsmc.org
LEGAL AID SOCIETY OF SAN MATEO COUNTY 521 East 5th Avenue Sao Mateo, CA 94402 T: (650) 558-0915 F: (650) 558-0673

24

25

26

27

28

6578609.2

- 24-

FIRST AMENDED CLASS AcnCl'l COMPlAINT;
CASE No. 08-CV-473S CW

Case 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 26 of 41
Exhibit A

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 27 of 41
Social Security AAministration Supplemental Secwity Income
Notice of Planned Action
SOCIAL SBCOR.I'fY
601 ALLIJlTOH Sf 2NJ.) I'L llBDWOOD CIT! CA 94063
DCelacierml bNeur m1b0e.r: 2.R0e0d7-acte-d ' .--.--..-

L _ . _ ROSA MARTINEZ

c:hancJ.. We are vrlt1n9 to tell you abou~

111 your Supp~tal

Security IncC1118 (SSI) paJII8Dta. The ~ollov1D9 c:hart show. the

SSI lIOJl.y clue you Lor the IIODtha va cbanqed. A8 you caza •••

froa the c:hart. we are c:haD9,ID9 your ~te for paat aDd

future IIIQDth.. 'the relit of thi. latter Will tell you IIOr. about

thi. chaDQe.

Your ••,..te Will . . CILaaCed Ae I'ollove

I'roIIl Noveeber 2005 aZId cODtinuiDq ~UDt DWII $0.00

W. will atop yow: paJIIBDta beq1mI1229 January 2008.

VIaI' You: I'apeat. CIuuI9-

We caDJlot paJ' you SS1 paJIIDta for Jamauy 2008 uad. cODt1mUnq
·beeau•• the law prohibita us £rOll paPD9 SUppte.eDtal Sec:ur,itJ' Income to per80De who have an' outatand1n9 att••t varraut forr

• a crime wh1c:1l Is a f'elODY (or. '111 Juri.diction. that do Dot cle£lne cd. . . a8 felOD1e., a cr:1Jle tbat :b pam1~1. by death or illpl'i.ODIIeIlt f'or a tua exceecl1n9 1 year), or

• a violation of • cODd1t1on of prObation or parole UDder reeleral or State law.
YCNr I'aya_t I . . . . . . oa fte••. I'uta

•

our
va.

recorch IIbaV 1.8U.8d for a

that the following wanat
criae vhlc:1l ia a felony:

tor

your

ane.t

IalNM bJ'1 ..IMI DAllB POLICE DBl'ARDIBNr
9105 NIt 255 S1' DOBAL~ I'L 33172 (305) 411-2070 Date of warrant: July 14, 1980 Type of crime I druG related
sa NEU PAC.

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 28 of 41
Paqe 2

Originating caae number: .,80010900 National Crl.. Inforaatlon cen~er number: W413016901
• Social Security cannot provide further infor-atlob about the warrant. To aatlafy the warrant or vet more Information about it, pleaa. contact directly the
MIAMI DADS POLIa DlPAa'DlBN'r.

U' You 'l'lllnJt Ypur 551 SlunL1cI Be l'ald
Ev8!1 if you have aA out.tandinq arreat warrat, you bave certalll acldit10aal riqbt8 under the lav. YOUI' SSI can :be paid if' you
CaD abov ua you have a good reaaoa for not 8atisf'yinq the oUt8t&Dd1nq varraat. Plea. . aee the eDcloaure -IaforaatlO1l
AboUt SSI aDd outataDdiDg Arre.t Warrants- at the end of' tb1a notice for what Social Security conaider8 a good rea80ft for DOt satlafylnq a warrant. This enclosure alao tell. you Ybat to do if' you th1nJ1 you have a good reucm.

Ia.f'ematioa AlMnat Redlc::aU

For 1Dfonation about ally c:1umge ill your I(ed1cald el1g1b:U1ty caused by thi. action, you ehould get ill touc.ll with the local Social Service. Dlatrlct Office.
TId.... ':0 •••'.J>o?r

• We . .y:be 1D touc:h with you later a!xnrt lUly pa~ta we previou.ly made.

• 'rh1. d.c1alO1l refers ODly to your cla.1a for SSI pa,.ente.

• Tbis detera1DatlO1l replacea all previous deteZ'lDiDatiODll fOr the &!)oft perloda.

If You Dl. . .ree With 'rJae Deci.1_

If' you eli_gr. . wlth the declalcm, ' )'OU have the right to . appe.l. We ,,111 review your caa. aAd cozas1dv allY new facta you have.

• You have 60 daya to ask for all apPeal.

U. de,. • the 60 day. .tart tM day after you pt tJs1a letter.

We ••s.e you qot thi. letter 5

after· the date OIl :1t

unle•• you ahov tbat you di4 DOt get it vlth1a the

5 clay period.

• You. wst bave • good reaaoD fOr ".1tiDg lIOn than 60 days to . . . ~or aa appeal.

• To appeal, you must till out a fo~ called -Requeat ror Reconaideratloa.· !be fo~ IIWIber i. SSA-561. To get

r::::Case 4:08-cv-04735-CW Document 41

Filed 1211212008 Page 29 of 41 Paqe 3

S.. thia fora, tontact one of our officea. We can help you
fl11 out the fora bf telephon••

APJMIal Ia 10 »ay. To X.ep CettLag ':h.

Cbecll

If you appeal within 10 day., you w111 cOfttlaue to 'let the same chack allO\lAt until we decide your ca.e.

• The 10 day. start the day &.ft.r you g.t tIlia letter.

.

.

80ft.,. • If you loae your appeal, you aiCJbt have to pay .bac1l: sone or all of this

a. da,., Hovever, eYeIl If you appeal ia 10

we _ , atop the elIecll

1D January 2008 ahowa above i f both of the followiaq are

true:

• our DeW' deci.loD 1~ the a... a. the one you appealed; aDCl

• He aeDd Or give you a lett.r with our DeW declaioa in t1ae to atop the check.

JIOV To Appeal

There are three way. to appeal. You CD pick the QD8 you want. If you meet with us 1D pe&"8OII, it "'1 help us clecicle your c••••
e... Revi.w: You have the riCJbt to review the fact. ln your
f11e. You CD give U8 more fact. to acid to your £11.. 'l'2Jea we will cleclde yo~ can agaia. You will Dot meet with the peraon wbo clec1c1ea your C&H.

IDfozul CoDfuenee: You w111 meet with the per_em who decid•• your c..... You caJl tell that peraoa Why you thiU 'OU are rl9ht. You can qive us II01'1t facta to help prove you are right. You can hr1Jl(1 other people to help eapla1D your case.

For.a.l Conferenc., Dl. ls a . . .tiDq 11k. aD 1Dfor.al conference. De cl1ff.renee i . we. CaA uk. people ca.e to prove 'OU are rigbt. W. -CD II8lce tha br1ncr illpOrtant papera about your c. . . , even if th.y do not want to help you. You c:aJl cpe.tlcm theae people at your ...t1Jl(l.

I f You V. .~ . .lp VIth You Appeal

hav. You can

a frlead, lawyer Or 801180is. elae help you. There

ar. group. that c. . help you fiM a lawyer or qlve you free

legal aenlc.. i f you qua~y. ':here are alao lawyer. vbo do

not chuve lIDl••• you wiD your appeal. YOw:' local Social

Security office b. . a list of groupe that can help you with

your appeal.

Case 4:08-cv-04735-CW
r=

Document 41

Filed 12/1212008 Page 30 of 41

If you qat someone to hel.p you, you should let us know_ If' you hire sOllHlOne, we IIWat approve the fee before ' he or she can collect it. ADd i f you hire a lawyer, wa will vltbhold up to 25 perc.nt of !lAy past du8 benenta to pay toward the fae.
I~ In a..,. AftI' 0&.ationa

' E'or qeneral iDfol"llllt1011 a):)out SSI t visit our website at vww.8ocialaecurity.qov on the Internet. You vill f1hd the law
and reaulat1on. about SSI el1q1))llity and SSl payaent &!DOUBt.
a t vvv.social.ecur1ty.qov/SSl~ule.l.

For qaneral queationa ,about sst or apec1f'ic qu••tions abOut

ti.... your cas., you may call U8 toll-free a~ 1-800-772-1213. or call

your local Social Security office at 1-650-363-2919. Our 11nea

are baai.at early in th. veek aDd early in the .ontb, 80 if

your baain••a can wait, itt. baat to call 'at other

We

cu enaver lIlOat queationa over the phcme. You can alao write

or viait any Social security office. !he office that servea

your area 1s located at f

601 ALLD'fON ST 2ND IT. llBDWOOD CIT!' CA 94013

If you clo call or vi.it an office. pl.... have thi. letter with you. It will ulp ua an.ver yOUI' c;ueations. Aleo, if you pl&ll to Visit aft office, you -7 call aheacS to . . . &II appointaeDt. '
fti. will help ua 8arve you .ore qulcUy oea you urive at the
office.

Peter D. SpeftCer Beglonal Ca.aias1oner
San I'ranc18CO I.ll9ion

1Dc10aur.: In£o~tloa About SSI and OUtstanding Arrest
Warr&llts
SD 111ft PACE

Case 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 31 of 41
Exhibit B

Case 4:08-cv-04735-CW Document 41 Filed 1211212008 Page 32 of 4.1

!COM. SI!CUIIITY A2MNSnIA'IDI
REQUEbl FOR RECONSIDERATION

TOIno

NAME OF CLAIMANf

f1 oSA .'it-,.Ji-J"":(-I I ,"~ft.._. --:.--
soc:w. SECURITY CLAIM NUM8BI.

J

Redacted

SPOUBI'I NAMI~ OMY it SSI t:-.J

NAME OF WAGE EMNrJI 0.. E.f.EIIIILOY!D
PaION flf ~"." t:ItIImMt.J
A&. SECURITY INCOME IIIQ 01 SI'KIAL IENIPfTIIIWt CUlM ...... Sf'OUa"~ IEQJIfIY""-
OM.Yin_~

(Do nor WIiN- ill t- I* fP~ KIII
.;.{A
DEC 11 ZOII7

FOR

• ,1Ifi......

, sstsva-.

,-

SUPPl.lMNTAL IEURrTY INCOMI 011 ftCIAL mEMNS 88IEPI18 ~TION ONL'I'
............__........T...... Y_'s.' ........' - _ o r....v.... ....IlVlla...t...... •

. . . . . . . . . . . WIIIf . . . . . . . . . . . . . . . . . . . $ 7

. . . . . . . . . , _ _ . . . . . . . . . ." - . . . . . .

cr Coi".... ISVIt-rw............................................•

c...... D ........

~ FersnIt CoI"--.

OR NAME OF aAIMAIfMI Ie cailfATM

D 0 NOfh\TTaINIY

ATTOIUe

o NO PURTHER DE\IEI.OPIBT RlGUffIID (GIll 0I10U00)
CJ REGURD DIVIU)IIMINf ATTACHED CJ IIIQUIRED ~ PENDING. WIlL FDRWAID OR Q'VISIIn'AlUS
wmlN30DAYS

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2006 Page 33 of 41
Exhibit C

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 34 of 41

Social Security Admjnistration

Supplemental Security Income

Notice of Reoonsideration
ROSA MARTINEZ "
[

SOCIAL SECURITY 601 ALLERTON ST 2ND FL REDWOOD CITY. CA 94063 Claim Number: ~.-ac:_ tecI __ December 11, 2007
026

Deu ROSA MARTINEZ

Reecmeid8l'lltiOD ftlecI: December 11. 2007

You have requeatecl that Social Security reiDatate your SupplemeDtal Security

lDcome p81Dl8I1t8. but you haw DOt plOVided the documeatcltimL Deeded. Social

Secarity rec:ozda iadicat.e that Miami Dade Poli&:e Department in Daral Florida baa a wammt _ your arrest aDd the crime that the 'tt'III'rUt wu iaaued _ is a

felcm.y. In ordedbr Social Security to reiDatate YOUI' beD.a&e you muat provide aD

origiDal document which 1i8t8 The Wammt Numller. The iaauiq aPDc:y/cowaty.

aDd the date the WarraDt was !88Ciaded or'satiafied. Ifyou beliew the wammt

Wat issued iD errw. Social Security must hoe an 0Ji8i,Dal dowment that statu

the wammt was ianed in enor aDd doe; not pertaiD. to JOU at aD. It must state

the date the W8I'l'8Jlt was resc:iDded. This ia the cmly way this case can be

xuobed..

"

lIYou Dtaqree With The DecIsion

I1you cIiIagree with this deciaioa. you haw the ricfat to requett a heariq. A per80Il

be. who has not &eeJl Your caae before wiD.1ook at it. That pel'8Oll ia III AdmiDiatrative
Law .Judp (ALJ). The ALl wm :e'riew you case apin and look at any DeW Iac:ta

you have

deeidml yOUI' case..

• You have 60 dap to uk tar a burina'.

• The 60 da,. start the cIq after you nceive tbia letter. We U8\DDe you got this leuar lS days after the data OIl it unIeae you8bow ua that you did DOt get itwithin the 5-day period.
mr • You lDust have a pod n880D ifyou wait DlOI'8 tlum 60 clap to uk a heariq.

See NauP...

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 35 of 41

.................................................-.-. ... ... ...'m.......~....

,..- ,....a1I.,.........,..-.... 11IeAUwIl...JIII!a............................,... .

,. .,_ ,..... _ ...~....AU....

-~
.

............,... . . . .IIIII.. _ JIW~y _. . . .AJ,J...

..A. 7LtrI.... ...

...D..

.•,

.I

.......... ... .......,......

.

DaAU. .OD~...........,~..... ..,...' ....... . .
•. . . . . ., . .. . ._ . . . . .IP . . .' ..pJue,..,......

a_ PSi I'lltea............

·..MJ._.................. ....,.r,.........__ klfWl7t II.....,.................,.=CM'I"

"'DllAU

~f

t .....

"-"..... ..,......,...t 1Ip....1II..~.r.....-..c................

AIJ

1fY_. . . . . . . . . . . .AfpeI

-........................_........ v.._ ....6IIai.,. I '...- .. _ .. z-n...~

SMM...... . ....,.........,....a...,J..w.I.I,a..i.I.lt...-.=. 1d1I-I.l._.........,:.".:_:.........................,.....,...

yI.f.at,.:

1r~. ._.III!f~

. III........, ......_ -

.......-.0 r

'wID...,.......... ,.l.-.I .-.1W.1<u~"l..,.t.J...n......."~ .t.!..e.r..w.~ .'.......

.-.'.c.

a a
l_p.JI.J.-.._.•.....,..

Case 4 : 08-cv-0473~CW Document 41 Filed 1211212008 Page 36 of 41

r::

PageS of3

local Social Security oftice at 650-363.-2919 ad uk far Mrs. C. Sop. We can. answer
moat queatioaa over the phone. llyou are deafor bud ofhea.riD& you may call our
TTYII'DD number 800-326-0718. 111011 do call or 'Visit an o1Iioe. please have thi8
letter with you. It will help 118 aDSWer yoW' questioDL

Jtyou plaD to visit an oftice you may call ahead to make an appointment. Thia will help 118 eerYe )'OU more quicldy.

A. S."",
A. Staafal Diatric& Muuapr

. -.•.

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 37 of 41
Exhibit D

Case 4:08-cv-04735-CW Document 41 Filed 12112/2008 Page 38 of 41
Mr. Bleat A. RadIIil*
Redacted
w.a.... . . . . .y . . . . . . . . . . . ror . . . .
W.blDdlla ........oarNlc:l fOml. . dII~I.aw laa"ndoalaicm. 'J1MnID. ..!Iaw.t.Bld",reqaMIrrreview.
ndI.-11111 dae.AcIaIiD..... taw1vItth cIaUiGa ft_ &III. . . .or..
¢onnnfei-erolSooW s-.tl1fa)Gllr ~ ..... W.ApJIIeI
... v.-_~ wm ....)Wr. . t.lDJoftiletiknrtalnilloal:
• TheAdad.iD......Judst..,..Io.r.v. ....hiI. . .cIIscnIIbl.
• ftcnfl. . .ollar.
• 1kdcI::iIIblilDDt iIiJlIIIftd lJ)'..........t ~
• 'l1IIIJ1a ....poIfGyorJIIOGCdmaI--dlltmqdlcc.dlc pabBclarat.
• W......Mtf 1IId.-lll _ _ _ altbl cledlliaDiI ClIIIInIyIO ilia weiPtoiall . . cMdIaDellOWie ........
WllatW.C. . . . . . . .
fa toot:Iqa,..ca. .................,.di.tIpe wfdtt).,decIIfaD ad a-
......... eridcIICellllld CIt . ......., OrdwofAlJpelll Coaadl.
UPIBSINl'A1'lVB

()

Ol

(/I

a>

~ o

(Xl

I' tI~inr~i~Jll

~!1
tiptl

~;l(~U1tf1l

f Ii
2f 'If'

~,-,i'f
i! ,

ItI~ilii:'·1
i 11~r'J11~

".!!i'
t~'il

t

I

~ ~
-..J W
a<.n
~

r

g(;)

f

;11'111- f~t~f

I!IlI~

II
.(

i I

fiJi itilU rrJ~il~1 ~~~~I I i

3
('b
:.:.:.).. ~ .....
"TI
~

~

.....

~

~.....
I\)

r i f 1 ...011 -.fl

~i~ ·

j!~i III Ii';·!. t

too:3
(Xl

"U

Q)

(Q

a>

w

to

r~r[ 1 ·

i Ij-I -rl! i

a
~ .....

(')

Q)

i &..
it

,i

~
t

~jH!t

i"~
itl

t
!

'!l!~'Ij

·
f!li

li~. .~

i
g

I~.!.

I

~
~ oco
~
o.rI :.

r f
~
~

t i' In I .

Ibr~fl".
• ~
Jt

r!
t
f
~ I

~!J
iIihi
iilw~~.

~~iJ .
h
iw=l

ll~i
tit

.tJ~!1~

III.
(.J! titt

:I~ltrJ;s

1Id~rIr1I~:. !II1

i

il
Ii
(,Jf
rit~

I

III, i ~I II I·I~! 'I I~t
I Ii I'

~if I~I
II 1,1 i J~ .

~li Ii"

lJ~,IitIlt

Ia~'t~

lit ,tat

. •t

Jill

l·" I

tlt!J

1 ji

-:[ rrll ..'4 8 6

~

. I~I

R~fJ

i
i

a Pili

-..I
c..>
a01
::E
ogo ~ :a
~ .......
:!'!
~
......
-~......
~
oo~ co
-u
Q)
<0
ll)
.or:. g, .~ .....

Case 4:08-cv-04735-CW Document 41 Filed 12/12/2008 Page 41 of 41

aa.tA~ Redacted
oftk» tbIt __ , . ."»(36O)'138-39!2. III . . . .it:
SOcial Sccudty 110AllbaaSt BeQincNaI, WA 9t22S-382J
ORIGINAL st<DIID BY

~ OJdIrofA"... cO.ciI

._.... 1..I.".A.1,.I..d""-..".:,".." •.•

. _ ... ... .

NOidswest Jusdcllmjeet 1814 CaanralAw
~WA91Z25

 
 Case4:08-cv-04735-CW Document221 Filed04/30/12 Page1 of 1

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 ROSA MARTINEZ; JIMMY HOWARD;

No. C 08-4735 CW

ROBERTA DOBBS; BRENT RODERICK; 5 SHARON ROZIER; and JOSEPH

ORDER DENYING

SUTRYNOWICZ, on behalf of 6 themselves and all others

MOTIONS FILED BY MARY CHARLES

similarly situated, 7

ROBINSON WITHOUT PREJUDICE (Docket

Plaintiffs, 8

Nos. 205 and 206)

v. 9

MICHAEL J. ASTRUE, Commissioner 10 of Social Security, in his

official capacity, 11

Defendant. 12

________________________________/ 13
The Court DENIES Class Member Mary Charles Robinson’s motions 14
for an injunction and sanctions without prejudice to re-filing by 15
Class Counsel if Class Counsel discover evidence that Ms. Robinson 16
is a Post-2006 Class Member instead of a Pre-2007 Class Member. 17
IT IS SO ORDERED. 18

19 Dated: 4/30/2012
20
21

CLAUDIA WILKEN United States District Judge

22

23

24

25

26

27

28

 
 SOCIAL INSECURITY
How the Social Security Administration's "Fugitive Felon Program" Harms Disabled, Retired and Poor Americans Without Aiding Law Enforcement
Mental Health Project
Bill Lienhard, Project Director Jennifer J. Parish, Director of Criminal Justice Advocacy
Mental Health Project Urban Justice Center 123 William Street, 16th Floor New York City, NY 10038
646-602-5600 www.urbanjustice.org
October 2007

Acknowledgments This report would not have been possible without the generous support of
the van Ameringen Foundation. The authors would also like to thank Gerald McIntyre of the National Senior Citizens Law Center, Elissa Rossi, the law firm of Proskauer Rose LLP, Barbara Samuels, Irma Ozer, Freda Moon, Launa Schweizer, Raymond Ortiz, A.V. Ryan, Tessa Moran, Ian F.
Feldman, Emilia Sicilia, Lesley Berson, and Sean Mosher-Smith. Printing was generously provided by Cadwalader, Wickersham & Taft LLP.
i

Table of Contents

I.

Introduction……………………………………………………………………………………………………………….…1

II. Brief History Of Social Security Benefits……………………...………………........................................4

III. Supplemental Security Income And Social Security Disability Insurance Are Difficult To Win, And The Amounts Are Meager ……………………………………………..…………5

IV. A Congressional Effort To Stop Fugitives Becomes The Social Security Administration’s Effort To Save Money By Cutting The Benefits Of Harmless People........…..6

A. The Social Security Administration Suspends The Benefits Of People Who Are Not Wanted Fugitives……………………………………………………...……………………….……………...8

B.

The Social Security Administration Suspends The Benefits Of People Who Are Not

Fleeing .………………………………………………………...………….………....................................9

C.

The Social Security Administration Suspends The Benefits Of People Who Are Not

Violating Probation Or Parole ……………………………...……….…………………………………..11

D. The Social Security Administration Suspends The Benefits Of People Who Do Not Have Outstanding Warrants Or Probation Or Parole Violations Because Its Database-Matching System Is Faulty ………......……………………………………………………11

V. The Fugitive Felons Program Disproportionately Harms People With Severe Mental Illness….………………………………………………………………………………………..…......13

VI. The Fugitive Felons Program Shifts The Cost Of Caring for Vulnerable Citizens From The Social Security Administration To States And Cities .........................................................14

VII. Recommendations……………………………………………………………………………...…………………...….15

A. Congress Should Repeal The Sections Of The Personal Responsibility And Work Opportunities Act And The Social Security Protection Act That Make People Ineligible For Benefits …………………………………………………………………………….…...…..15

B.

The Social Security Administration Should Follow The Law And Suspend Benefits

Only If People Are Actually Fleeing From Justice

C.

The Social Security Administration Should Refine Its Data-Matching System To

Guard Against Mistakes And Identity Theft……………..…………………….…………....…….15

D. The Social Security Administration Should Help People Obtain Information about Alleged Warrants/Violations.………………………………………………………………………….…15

ii

I. Introduction
We can never insure one-hundred percent of the population against onehundred percent of the hazards and vicissitudes of life, but we have tried to frame a law which will give some measure of protection to the average citizen and to his family against the loss of a job and against poverty-ridden old age.
– Franklin D. Roosevelt’s Statement on Signing the Social Security Act (Aug. 14, 1935).
In recent years, the Social Security Administration (SSA) has turned from its noble mission of protecting the disabled, retired and poor to focus instead on punishing them under its "Fugitive Felon Program" (FFP). The purported goal of the FFP is to help police apprehend wanted fugitives, but its effect has been to suspend the benefits and wreck the lives of thousands of harmless people.
For example, Martin Hicks, *1 a 45 year-old man with a history of severe psychiatric problems since adolescence, worked for many years as a digital-imaging technician until his mental illness ultimately made it impossible for him to hold a job, and he began receiving disability benefits. In December 2005, he was doing as well as he could given his illness — living in a single room in Brooklyn, and receiving treatment from a team of psychiatrists, therapists, and caseworkers — when he received a letter from SSA advising him that he was no longer eligible for disability benefits because the police department of Broward County, Florida, had issued a warrant for his arrest. Mr. Hicks was utterly perplexed; he had never had any contact with Florida police. Unable to convince SSA, Mr. Hicks turned to the Mental Health Project (MHP) for help.
We discovered that Mr. Hicks lost his disability benefits because someone in Florida used "Martin Hicks" as an alias. Although Florida authorities had a photograph of the correct person —clearly not Mr. Hicks—for months SSA refused to restore Mr. Hicks' benefits. He lost his apartment because he could not pay the rent. He lost coverage for his outpatient treatment and his psychiatric condition worsened. He fell from a fire escape at his sister’s apartment, and sustained such severe injuries to his head, legs, and back that he had to spend a month in the hospital and several weeks in a nursing home.
Only after Florida apprehended the correct person and vacated the warrant against Mr. Hicks did SSA restore his benefits. Sadly, by this time, Mr. Hicks’ mental health had deteriorated so much that he could no longer live independently.
SSA also suspended the disability benefits of Eric Aguilar, * a 56-year-old New Yorker with traumatic brain injury (TBI), in September 2005 based on a seven-year-old warrant. Due to his TBI, Mr. Aguilar’s memory was severely impaired, but he did recall going to court in Brooklyn. Although Mr. Aguilar’s case manager gave SSA documents showing that Mr. Aguilar had resolved his case, SSA nonetheless refused to reinstate his benefits.
The case manager, frustrated and anxious because Mr. Aguilar's landlord was threatening to evict him, contacted MHP. After many calls to the police department and the court, we were able to link the warrant in question to a dismissed case. Indeed, we discovered that the warrant had been vacated just a week after it had been issued. Again, however, SSA initially refused to restore Mr. Aguilar's benefits. Finally, after tense negotiations between SSA,
1Names that have been changed are designated with an asterisk.
1

the court clerk and the police department, SSA relented. By this time, Mr. Aguilar had been without any income for six months and was in danger of losing his apartment.
The harm caused by the FFP is not limited to New Yorkers. As detailed in a Los Angeles Times article,2 examples abound nationwide.
[T]he computer dragnet frequently cut off federal benefits to the sick, poor and disabled who were neither fugitives nor felons. Many lacked financial and legal resources to get their benefits restored. In one case, an Oregon man with a mental disorder was named on an arrest warrant for entering a rental car without permission at an airport parking lot in 1999. Four years later, computers found the record, and the man's federal disability payments stopped. The man committed suicide last year, before his benefits could be reinstated. An Oregon woman with lung disease lost her monthly disability check and faced the loss of her government-subsidized oxygen supplies over a Nevada arrest warrant she didn't know existed. [A] Minnesota man lost his disability support because he once disrupted Conrail train service in Ohio. He had threatened to kill himself by jumping from a trestle in Toledo. He left the state unaware that he was named on a criminal warrant. Others regarded as fugitives and denied benefits turned out to have been in nursing homes or wheelchairs and were physically unable to flee . . . [A] Georgia man had his disability checks cut off for four months over an unpaid 1978 motel bill in Seattle . . . Among those penalized by loss of disability benefits was Edith Hull, 56, who lives in Oregon. When her $358 monthly SSI disability check stopped, she was surprised to learn that she was considered a fugitive from justice. The woman, who suffers from chronic obstructive pulmonary disease, a lung disorder, also was threatened with loss of Medicaid benefits essential to pay for oxygen equipment. The problem was a 7-year-old arrest warrant from Nevada that Hull said she knew nothing about. "I obviously wasn't fleeing. I had a driver's license for all these years. It's not like I was hiding," Hull said. With help from Legal Aid, she found that in 1995, three months after she and her husband had moved to Oregon, a warrant had been issued. Her former Nevada employer alleged that she improperly cashed a $962 check. She said she was owed the money. Hull and her husband, a cancer patient, borrowed heavily from relatives to pay for housing and other bills while trying to resolve the legal tangle. Without her mother-in-law, Hull said, "we wouldn't even have a car to live in." Meanwhile, authorities in Sparks, [Nevada], declined to spend the $3,800 they said it would cost to extradite her. "Considering the age of the case and the relatively small amount of money" allegedly stolen, a case like Hull's isn't worth the expense, said Washoe County deputy district attorney Mike Mahaffey. Hull couldn't afford a trip back to Nevada to clear the warrant. Last June, a federal judge ruled that Hull was not a fugitive and ordered her disability payments resumed.3 Still, Hull complained, for 2 1/2 years while her benefits were suspended she was treated as "guilty until proven innocent."
2Sandy Bergo, Hunt for Fugitives Expands to Retirees: A computer dragnet of aid recipients has caught felons, but in many cases the sick and poor lost their lifelines. Social Security rolls are next, L.A. TIMES, Feb. 13, 2005, at A1, available at http://www.urbanjustice.org/pdf/press/la_times_02_13_05.pdf.
3 See Hull v. Barnhart, 336 F. Supp. 2d 1113 (D. Or. 2004).
2

SSA's policy is a misguided, thoughtless attempt to implement a federal law that was intended to prevent fugitives from using their SSA benefits to fund their flights from justice. Specifically, that law states:
No person shall be considered an eligible individual or eligible spouse for purposes of this title with respect to any months if during such months the person is –
(i) fleeing to avoid prosecution, or custody or confinement after conviction, under the laws 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 which, in the case of the State of New Jersey, is a high misdemeanor under the laws of such State; or
(ii) violating a condition of probation or parole imposed under Federal or State law.4
SSA’s implementation of this law is leaving thousands of retired and disabled people like Martin Hicks, Eric Aguilar and Edith Hull destitute and desperate. This report will first provide a brief history of the Social Security program and a short description of how difficult it is to win and then to live on Social Security benefits. We will then show that:
• SSA suspends the benefits of people who are not wanted by the police; • SSA suspends the benefits of people who are not fleeing felons; • SSA suspends the benefits of people who are not violating probation or parole; • SSA’s method of identifying people to suspend their benefits — by mindlessly matching
names found in faulty databases — results in incorrect matches that can implicate victims of identity theft;
• The FFP disproportionately harms people with severe mental illness; • Suspending the benefits of retired and disabled people who are not wanted by the police
has tremendous financial and human costs and does not help the police catch fugitives; • The FFP shifts more of the cost of caring for our nation's most vulnerable citizens from
SSA to states and cities.
Finally, we will make recommendations about what Congress and SSA can do to end the suffering caused by the FFP.
4 42 U.S.C. § 1382(e)(4)(A) (2007). See also 42 U.S.C. § 402(x) (2007).
3

II. A Brief History Of The Social Security Program
The federal government provides benefits under two separate programs administered by SSA. The older program, known as the Old-Age, Survivors, and Disability Insurance program (OASDI), was originally proposed by Franklin D. Roosevelt and passed by Congress in 1935.5 At first, benefits were available only for retired workers.6 Through amendments made in 1956 and 1960, Congress expanded the program to provide benefits to workers who become disabled before retirement and to their dependents, called Social Security Disability Insurance (SSD).7 Congress created the Supplemental Security Income (SSI) program in 19728 to provide benefits to a separate and more vulnerable group—needy individuals unable to work as a result of disability or advanced age.9
OASDI is for individuals who have worked or for their family members. The benefit amount depends on how much a wage earner paid into the Social Security system. SSI is for individuals who are disabled or elderly, have little or no work experience, and who are very poor. Their benefit amount is fixed. To qualify for SSI, an individual cannot have more than $2,000 in resources and a married couple must have less than $3,000.
These programs are vital to the well being of millions of Americans. As of December 2005, there were 48.4 million OASDI recipients,10 and, as of March 2007, there were 7 million SSI recipients.11 Access to benefits is especially important to SSI recipients because more than half of them have no other income.12
5 See Social Security Online: The Official Website of the U.S. Social Security Administration, Historical Background and Development of Social Security, March 2003, http://www.ssa.gov/history/briefhistory3.html [hereinafter SSA History]. 6 Id. 7 Id. 8 The program came into effect in October, 1974. 9 See SSA History, supra note 5. 10 Office of Policy, U.S. Social Security Administration, Annual Statistical Supplement, 2006, available at http://www.ssa.gov/policy/docs/statcomps/supplement/2006/oasdi.html. 11 Office of Policy, U.S. Social Security Administration, SSI Monthly Statistics, March 2007, available at http://www.ssa.gov/policy/docs/statcomps/ssi_monthly/2007-03/table02.html. 12 Office of Policy, U.S. Social Security Administration, SSI Annual Statistical Report, 2004, available at http://www.ssa.gov/policy/docs/statcomps/ssi_asr/2004/index.html.
4

III. Social Security Income And Social Security Disability Insurance Are Difficult To Win, And The Amounts Are Meager
Winning SSI or SSD benefits is no small task. Applicants must prove they are severely disabled and that their disabilities will either persist for at least one year or result in death. They must obtain extensive medical evidence and be examined by SSA doctors. SSI applicants bear the additional burden of proving that they have very limited assets and income.
SSA makes the process even more arduous by denying most initial applications 13 and taking an extremely long time to process appeals. A recent editorial in the New York Times referred to the process as "unacceptable and inhumane," stating:
Processing delays . . . have left more than one million applicants languishing without help, some for years . . . The most acute bottlenecks are at the appeals level, where the average processing time is now 515 days . . . Such delays are especially pernicious because slightly more than one quarter of all claims are awarded after an appeal hearing, and nearly two-thirds of recipients who appeal ultimately prevail. Without the benefits they are entitled to, far too many applicants get sicker and experience severe economic hardship, including foreclosures and even homelessness. Some applicants die before their appeals are heard.14
The rewards for surviving the application ordeal are meager. In 2007, the average SSD payment is only $979 per month.15 The federal SSI payment for a single person in 2007 is only $623 per month.16 Some states provide a small supplement to SSI recipients. New York adds $87 per month,17 bringing the annual SSI income for a single New Yorker to only $8,520, which is $1,690 below the federal poverty line of $10,210.18
13 In 2004, for example, SSA denied 63% of initial applications for SSI or SSD, but later granted benefits to 62% of the applicants who pursued appeals. See Empire Justice Center, Disability Law News at 15, Nov. 2005, available at http://70.86.230.142/archive/newspublications/dapnews/2005/Nov.pdf. 14 Op-Ed, To: The Temporarily Able-Bodied, N.Y. TIMES, May 1, 2007, at A22. 15 Press Office, U.S. Social Security Administration, 2007 Social Security Changes, (last visited Sept., 26, 2007), available at http://www.ssa.gov/pressoffice/factsheets/colafacts2007.htm. 16 Office of the Chief Actuary, U.S. Social Security Administration, SSI Federal Payment Amounts, (updated Oct. 18, 2006), available at http://www.socialsecurity.gov/OACT/COLA/SSIamts.html. 17See Supplemental Security Income (SSI) in New York, SSA Publication No. 05-11146, (Jan. 2007), available at http://www.ssa.gov/pubs/11146.pdf. See also Neighborhood Legal Services, Inc., SSI Rates Effective 1/1/2007, available at http://www.nls.org/ssirates2007.htm. 18 Annual Update of the Health & Human Services Poverty Guidelines, 72 Fed. Reg. 3147 (Jan. 24, 2007), available at http://aspe.hhs.gov/poverty/07poverty.shtml.
5

IV. A Congressional Effort To Stop Fugitives Becomes A Social Security Administration Effort To Save Money By Cutting The Benefits Of Harmless People
Despite their severe disabilities, the application ordeal, and the meager benefits, through thrift, grit and luck, many of our clients manage obtain benefits and support modest but independent lives. SSA's FFP carelessly and needlessly jeopardizes their achievements.
The FFP began as a Congressional effort to stop wanted fugitives from using government benefits to fund their flights from justice. In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which prohibits recipients who are fleeing to avoid prosecution or incarceration for a felony or who are violating probation or parole - so-called “fugitive felons”— from receiving a group of federal benefits, including SSI.19 In 2004, as part of the Social Security Protection Act (SSPA), Congress extended the “fugitive felon” provision to the OASDI program, prohibiting them from receiving disability benefits and retirement benefits.20 An individual can avoid being declared ineligible for benefits under the SSPA upon a showing of “good cause.” Under the “mandatory good cause” exceptions, SSA may not deny or suspend benefits to a person who was implicated in the criminal offense because of identity fraud or in situations where the person was found not guilty, the charges were dismissed, or the warrant was vacated.21
Congress gave SSA authority to establish “discretionary good cause” exceptions if the underlying crime was non-violent, not drug-related and there are “mitigating factors” that point in favor of granting benefits.22 SSA defined two “discretionary good cause” exceptions. The first allows benefits if a person shows that (i) he or she has not been convicted or pled guilty to another felony, and (ii) the law enforcement agency that issued the warrant reports that it is unwilling to act on it.23 Under the second exception, benefits can be restored where (i) the recipient has not pled guilty or been convicted of another felony, (ii) the only warrant was issued more than 10 years prior to the date that SSA matched the warrant to its records, and (iii) the recipient is incapable of managing payments, is legally incompetent, or is residing in a nursing home or mental treatment facility.24
According to the legislative history, the 104th Congress passed these measures to prevent fugitives from using benefits to fund their flights from justice, and to enable police to apprehend wanted criminals.25 SSA, however, has pursued a completely different goal: saving money. In 2003, SSA's Office of the Inspector General conducted an assessment of the FFP.26 Not one word in the Executive Summary of the assessment concerns apprehending fugitives. Instead, it
19 See 42 U.S.C. § 1382(e)(4)(A). 20 See 42 U.S.C. § 402(x). 21 See 42 U.S.C. §§ 402(x)(1)(B)(iii), 1382(e)(4)(B). 22 See 42 U.S.C. §§ 402(x)(1)(B)(iv), 1382(e)(4)(C). 23 See U.S. Social Security Administration, Program Operations Manual System [hereinafter “POMS”], SI 00530.015 and GN 02613.930, available at https://s044a90.ssa.gov/apps10/poms.nsf/partlist!OpenView (follow hyperlinks for either “GN-General” or “SI – Supplemental Security Income”) (last visited Sept. 26, 2007). 24 Id. 25 SCOTT SZYMENDERA & KATHLEEN S. SWENDIMAN, SOCIAL SECURITY ADMINISTRATION: SUSPENSION OF BENEFITS FOR FUGITIVE FELONS 4 (Congressional Research Service, Dec. 27, 2005), citing U.S. Congress, House Committee on Ways and Means, Social Security Protection Act of 2003, report to accompany H.R. 743, 108th Cong., 1st sess., H.Rept. 108-46 (Washington: GPO, 2003), pp. 23, 35. 26 Office of the Inspector General, U.S. Social Security Administration, A-01-03-23070, ASSESSMENT OF THE SUPPLEMENTAL SECURITY INCOME FUGITIVE FELON PROJECT (Sept. 2003), available at http://www.ssa.gov/oig/ADOBEPDF/A-01-03-23070.pdf.
6

focuses exclusively on how much money SSA can save by suspending benefits and collecting overpayments more aggressively (about $206.9 million).27 The goal of the FFP, according to the assessment, is not to apprehend fugitives, but "to improve SSA's debt recovery performance and assist the Agency in its strategic objective to increase the percentage of outstanding debt."28
In addition to saving money by suspending the benefits of as many "fugitives" as possible, the assessment’s authors are particularly concerned with the cost of recipients who manage to clear up their warrants and have their benefits restored. This, they explain at length, can be offset by forcing those recipients to repay benefits they received while the warrants were outstanding:
Of the $1.4 million paid to fugitives, $121,030 (8.6 percent) was discovered as a result of our audit. One reason for the undetected overpayments concerns the action SSA took once fugitives satisfied their warrants. Law enforcement agencies use the terms "rescinded" or "withdrawn" to indicate that warrants were satisfied. However, SSA staff may interpret this to mean that the warrants were nullified as if they never existed when in fact, the warrants were valid from the dates of issuance to the dates they were satisfied. For example, an SSI recipient in our sample had a warrant issued on February 29, 2000. SSA took administrative action in November 2002 to suspend SSI payments and assess overpayments for prior months incorrectly paid to the fugitive. On November 25, 2002, the individual satisfied her warrant . . . Because the overpayments were effectively deleted, SSA did not pursue recovery of the funds. However, our review of this case found that the individual's warrant was active from February 2000 to November 2002, and she was therefore ineligible for SSI payments. As a result of our audit, SSA reevaluated this case and assessed overpayments totaling $14,874 that might otherwise have gone undetected.29
The assessment fails to explain how collecting $14,874 from a disabled person living below the federal poverty level, who satisfied her warrant within only 25 days, served any law enforcement purpose.
To achieve its goal of saving as much money as possible, in July 2000, SSA began suspending the benefits of SSI recipients identified — by a crude computer-match — as having an outstanding warrant, probation or parole violation.30 SSA instituted a similar policy for suspending OASDI benefits following passage of the SSPA.31 As detailed below, using this "computer dragnet,"32 SSA now suspends the benefits of retired and disabled people who are (a) not wanted, (b) not fleeing, (c) not violating probation or parole, and (d) often not even the correct recipients.
27 Id at i. 28 Id at ii. 29 Id at 8-9. 30 See POMS SI-00530.010, supra note 25 (explicitly stating that existence of outstanding warrant is sufficient to make person ineligible for SSI, and that warrant need not state that the person is “fleeing” to avoid prosecution or incarceration). 31 See POMS GN-02613.001, supra note 25 (providing that existence of warrant, without more, is enough to require suspension or denial of SSD benefits as well). 32 Bergo, supra note 2.
7

A. The Social Security Administration Suspends The Benefits Of People Who Are Not Wanted Fugitives
After identifying an alleged fugitive, SSA notifies the law enforcement agency that issued the warrant or violation. SSA allows law enforcement agencies 60 days to apprehend the individual based on leads it provides.33 If the law enforcement agency does not act or responds that it is not interested in pursuing the recipient, SSA suspends the recipient's benefits.34 In other words, the name "Fugitive Felon Program" is very misleading, because SSA in fact suspends the benefits of people who law enforcement agencies have decided not to pursue.
There are a number of reasons why the authorities would not be interested in pursuing every person with an active warrant. For example, ten, twenty, or thirty years may have passed since the warrant was issued. Or, the underlying offense may be relatively minor. In these situations, the authorities regularly decide that apprehending the alleged “fugitive” is more trouble than it is worth. Despite the fact that the agencies charged with enforcing the criminal law and maintaining public safety have determined that apprehending these people is not worthwhile, SSA summarily deprives them of critical benefits.
SSA's own statistics support the fact that apprehending fugitives is simply not the goal of the FFP. As of 2002, SSA’s Office of Inspector General reported that the agency had identified 45,000 alleged fugitives who were receiving SSI.35 Of that number, though, only about 5,000 (11%) were apprehended.36 Statistics from 2006 show similar results. Since the inception of the program in 1996, SSA has identified more than 303,000 “fugitives” who were receiving benefits or acting as representative payees. As of June 2006, only about 41,500 (13.6%) had been arrested.37 More importantly, all the arrests could have been made by simply providing information to the police. Suspending the benefits of 261,500 recipients who were not wanted had no positive effect on law enforcement.
33 POMS SI-0053.005(B)(2), supra, n. 25. See also U.S. GENERAL ACCOUNTING OFFICE, SOCIAL SECURITY ADMINISTRATION: FUGITIVE FELON PROGRAM COULD BENEFIT FROM BETTER USE OF TECHNOLOGY, GAO-02-346 at 39-40 (Sept. 2002) [hereinafter GAO REPORT]. 34 GAO REPORT, supra note 33, at 39-40. 35 Id. at 8. 36 Id. 37 U.S. Social Security Administration, PERFORMANCE AND ACCOUNTABILITY REPORT FOR FISCAL YEAR 2006, at 41, available at http://www.ssa.gov/finance/2006/FY06_PAR.pdf.
8

B. The Social Security Administration Suspends The Benefits Of People Who Are Not Fleeing
In 2000, SSA issued a regulation stating that a person would be ineligible for SSI benefits only when a court or other appropriate body made a finding that the person was fleeing to avoid prosecution or confinement or was violating probation or parole.38 Because the legislative history of the PRWORA makes clear that Congress intended to prevent only “fleeing convicts or probation or parole violators” from receiving federal benefits, SSA’s regulations seemed in line with Congress’ intent.39
SSA, however, began suspending benefits regardless of whether the recipient was actually fleeing. This is a clear violation of the SSA’s own regulations, as well as of the PRWORA and the SSPA.40 A person who is the subject of a felony warrant may not even know that he or she is facing criminal charges and so cannot possibly be “fleeing” from law enforcement. For example, in Tennessee, a court can issue a warrant based solely on a complaint from a civilian. A person who is the subject of such a warrant may not have had any contact with law enforcement or the courts, and would have no idea that a warrant for his or her arrest had been issued.
Even where a person has some contact with police, he may be unaware of charges filed against him. For example, Adam Thomas,* an SSI recipient, was detained by Florida police on suspicion of a drug offense, but was released without being arrested or charged.41 When he was released, Mr. Thomas left Florida and returned to his home state of Maine. After Mr. Thomas left the state, Florida charged him with a felony and issued a warrant for his arrest. However, Mr. Thomas had no idea about either the Florida charges or the related warrant, and therefore could not have been “fleeing” prosecution. Yet, SSA deemed him a “fugitive felon” and suspended his benefits.
Moreover, even if a recipient is aware of charges, failure to appear in court, which can result in a warrant, is not necessarily proof of flight from prosecution. Consider Walter Shepard,* a former businessman and successful real estate broker, who experienced emotional problems following difficult life circumstances including the death of his first wife and a rough
38 20 C.F.R. § 416.1339(b)(1), available at http://www.ssa.gov/OP_Home/cfr20/416/416-1339.htm. The provision states: (b) Suspension effective date. (1) Suspension of benefit payments because an individual is a fugitive as described in paragraph (a)(1) or (a)(2) of this section or a probation or parole violator as described in paragraph (a)(3) of this section 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)(1) 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; or (ii) The first month during which the individual fled to avoid such prosecution, fled to avoid such custody or confinement after conviction, or violated a condition of his or her probation or parole, if indicated in such warrant or order, or in a decision by a court or other appropriate tribunal (emphases added). 39 See H.R. Rep. No. 104-651, at 1352-53 (1996). 40 See POMS SI 00530.010, POMS GN 02613.001. 41 See Thomas v. Barnhart, 2004 U.S. Dist. LEXIS 11608, 1-2 (D. Me. June 2004), aff’d 2004 U.S. Dist. LEXIS 15536 (D. Me. Aug. 2004).
9

divorce from his second wife. After suffering a breakdown, he began receiving disability benefits. In the ten years that followed, he continued to struggle with mental health problems and was hospitalized more times than he can remember. Due to an incident that occurred during one of his hospitalizations, he was arrested and charged with a felony. He was rehospitalized shortly thereafter and could not appear in court on the adjourned date. Because he did not attend the court proceeding, a warrant was issued for his arrest. On the basis of that warrant, SSA improperly identified him as a “fugitive felon” and suspended his benefits. Clearly Mr. Shepard was not fleeing prosecution. When he was released from the hospital and returned to court, the judge vacated the warrant and excused his failure to appear. The case was ultimately dismissed.
Even if a recipient knows that an open warrant exists, this does not necessarily mean that the recipient is trying to flee. Where the warrant is issued by an out-of-state law enforcement agency (as it is in the overwhelming majority of cases), the subject of the warrant may not be able to return to the issuing jurisdiction to satisfy it. A recipient may be prevented by disability or financial situation from traveling. Robert Blakely found himself in that situation. While living in Montana, Mr. Blakely was involved in a fistfight, and, although the police investigated the fight, Mr. Blakely was not arrested.42 After moving to Michigan, he learned that a warrant for his arrest had been issued in Montana. Eager to clear the matter up, but unable to return to Montana because of ill health and financial inability, Mr. Blakely contacted the Montana authorities and volunteered to return to Montana if they would pay for his travel or send a car to pick him up. Despite the fact that he was clearly not “fleeing” prosecution, SSA suspended his benefits.43
After working with clients with similar issues, advocates around the country brought legal challenges to SSA’s interpretation and enforcement of the "fleeing felon” provisions. Four federal district courts and one federal appellate court have ruled that SSA’s policy goes beyond the reach of the statutes passed by Congress.44 Despite these decisions, SSA has refused to change its policy.
In December 2005, in the case of Fowlkes v. Adamec,45 the United States Court of Appeals for the Second Circuit held that SSA’s suspension of benefits on the basis of a felony warrant, without any inquiry as to whether the recipient was actually “fleeing” prosecution or incarceration, was illegal. In the words of the Court,
[t]he statute does not permit 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.’ 42 U.S.C. 1382(e)(4)(A). ‘Fleeing’ in § 1382(e)(4)(A) is understood to mean the conscious evasion of arrest or prosecution. See Black’s Law Dictionary 670 (8th ed. 2004) (defining ‘flight’ as ‘[t]he act or an instance of fleeing, esp. to evade arrest or prosecution’). Thus, there must be some evidence that the person knows his apprehension is sought. The statute’s use of the words ‘to avoid prosecution’ confirms that for ‘flight’ to result in a suspension of benefits, it must be undertaken with a specific intent, i.e., to avoid prosecution.46
42 See Blakely v. Comm’r of Soc. Sec., 330 F. Supp. 2d 910 (W.D. Mich. 2004). 43 Id. at 914. The court ordered SSA to reinstate Mr. Blakely’s benefits, finding that his inability to return to Montana did not support the determination that he was a fleeing felon. 44 See Garnes v. Barnhart, 352 F. Supp. 2d 1059 (N.D. Cal. 2004); Hull v. Barnhart, 336 F. Supp. 2d 1113 (D. Or. 2004); Blakely v. Comm’r of Soc. Sec., supra note 42; Thomas v. Barnhart, supra note 41; Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005). 45 See Fowlkes v. Adamec, supra note 44. 46 Id. at 96.
10

Following the Fowlkes decision, SSA announced that it would stop suspending or denying benefits on the basis of an outstanding felony warrant alone in New York, Vermont, and Connecticut (the states that comprise the Second Circuit),47 but continue to enforce its policy in the other states.
C. The Social Security Administration Suspends The Benefits Of People Who Are Not Violating Probation Or Parole
SSA’s policy of suspending benefits on the basis of outstanding probation or parole warrants is incorrect for similar reasons. The existence of a probation or parole warrant is not the equivalent of a finding that a person has violated probation or parole. For example, SSA suspended the disability benefits of David Campbell* because of an alleged probation warrant that it claimed was unresolved. Mr. Campbell, who is disabled because of the loss of sight in one eye and numerous other health problems, was arrested on a felony charge in New York City in 1995. He was sentenced to a short time in jail and to five years probation. In 1997, while still on probation, he was arrested and charged with the minor offense of trespassing and a violation of probation warrant was issued. When Mr. Campbell appeared in court less than a month later, the judge vacated the warrant. However, the court clerk failed to enter that information into the database. So, even though Mr. Campbell had successfully completed his probation, the data given to SSA showed that he had an outstanding probation warrant and, in 2006, his SSD was suspended. On December 28, 2006, the law firm of Proskauer Rose LLP, the National Senior Citizens Law Center, and MHP filed a lawsuit in the United States District Court for the Southern District of New York, Clark v. Barnhart, contending that this policy is unlawful.48
D. The Social Security Administration Suspends the Benefits of People Who Do Not Have Outstanding Warrants or Probation or Parole Violations Because Its Database Matching System Is Faulty
Putting aside SSA’s incorrect interpretation of the “fugitive felon” provisions, its program might be less harmful if it were more competently and carefully implemented. As it is, though, the database matching system SSA uses to identify ineligible people fails to function properly because so much information in the database is inaccurate.
To identify “fugitive felons,” SSA collects warrant records from various law enforcement databases, including the Federal Bureau of Investigation’s National Crime Information Center, United States Marshals Service and state and local law enforcement agencies. SSA then “runs” these records against its master files of Social Security number holders.49 SSA makes matches based on a person’s name, Social Security number, and date of birth.50 Matches are considered to be “exact” when all four pieces of information are the same on the warrant and in the benefits rolls.51 “Good” matches are those where only two or three pieces of information match.52
The addresses of people with “exact” matches with warrant data are sent to law enforcement agencies. SSA acknowledges that some additional investigation is necessary
47Determining Whether an Individual is a Fugitive Felon Under the Social Security Act, 71 Fed. Reg. 17,551 (Apr. 6, 2006), available at http://www.ssa.gov/OP_Home/rulings/ar/02/AR2006-01-ar-02.html. 48 See Clark v. Astrue, 2007 U.S. Dist. LEXIS 18434 (March 2007) (Michaeal J. Astrue, current Commissioner of the Social Security Administration, was substituted for former Commissioner, Jo Anne B. Barnhart). Plaintiffs’ motion for preliminary injunction was denied. Discovery has taken place, and final briefs from both sides are due in October 2007. 49 GAO REPORT, supra note 33, at 12. 50 Id. 51 Id. at 38 n.19. 52 Id.
11

because people who have violated the law often use aliases or assume false identities and, as a result, identification information in law enforcement databases, such as Social Security numbers, is often incorrect.53 It is disturbing that even though SSA knows that its “exact” matches may not be inaccurate, it nonetheless suspends or denies benefits on the basis of matches that are merely “good.”54 Often these “good” matches are inaccurate as well. SSA twice suspended the benefits of our client David Costello, claiming that he was the subject of outstanding warrants issued in Massachusetts. When we investigated, we found that the supposed match was obviously wrong: the person named in the warrant was a woman with a different Social Security number.
Inaccuracies in the database also make it unnecessarily difficult for recipients to restore their benefits by establishing that they qualify for a “good cause” exception. To maintain benefits, recipients must prove that they qualify for one of the “good cause” exceptions within 90 days of requesting an exception.55 Even under the best circumstances, the process can take much longer than 90 days. Collecting information about the warrant and the underlying violation, establishing mistaken identity, arranging for the recipient to return to the jurisdiction to vacate the warrant, and obtaining the proper documents from law enforcement agencies usually involve numerous telephone calls and letters and the help of probation officers, public defenders, district attorneys, and judges.
To accomplish that in ninety days, recipients need complete and accurate information. The information SSA gives is neither. The notices often lack sufficient information about how to contact the law enforcement agency or even which agency to contact. For instance, a recipient in Kentucky with severe memory loss received a notice informing him of an outstanding warrant. The notice provided no address or telephone number for the law enforcement agency, but simply directed him to contact the “Summit Co. Sheriff’s Dept.” Fortunately this individual had an attorney who eventually discovered that the Summit County in question was in Ohio. In another case, the notice to a California resident indicated that the warrant was issued in “Orange Co So” and had no contact telephone number, and the address provided was in Pennsylvania. In fact, the warrant was issued in Florida.
SSA provides no information about the date of the underlying offense, where it was committed or what the charge was. The notices also do not advise recipients how to find more information about a warrant or how to get it resolved. In fact, SSA discourages recipients with outstanding warrants from coming into its field offices for assistance.56 Furthermore, even though SSA suspends benefits based upon this faulty matching system, it requires recipients to provide substantial proof in order to have their benefits reinstated. For instance, a woman in Nevada had her retirement benefits suspended because of a 34-year-old warrant issued in New York City. The woman’s Social Security number was different from that of the person for whom the warrant was issued, and she is a white female while the warrant was for a black male. The only connection between the two is that they had similar—but not identical—names. They shared the same first and last names, but had completely different middle names. The Nevada woman was able to get a letter from the New York City Police Department stating that the Social Security numbers did not match and that the warrant was issued for a male. However, SSA
53 Id. at 14. 54 Id. at 38. 55 See POMS GN 02613.025(B)(3)(c). 56 See POMS SI 00530.600. This provision instructs SSA staff to answer such individuals’ questions over the telephone “and thereby discourage the caller from coming into the office.” Settling such fact-intensive matters over the telephone, especially when paperwork, numerous official documents and multiple agencies are involved can be exceedingly difficult, if not impossible. See also Social Security Administration, Baltimore, Maryland and Council 220, American Federation of Government Employees, AFL-CIO, Case No. 98 FSIP 24 (May 29, 1998) (Release No. 409), available at http://www.opm.gov/lmr/fsip/index98/agree.html.
12

found the letter insufficient because the warrant had not been dismissed. The matter was ultimately resolved through the efforts of a legal services organization.
V. The Fugitive Felons Program Disproportionately Harms People With Severe Mental Illness
While SSA’s misguided policy harms recipients who are blind, physically disabled, mentally disabled, impoverished, and retired, it is particularly likely to harm recipients with severe mental illness. In an audit of the program, the Office of the Inspector General of SSA found that out of 180 cases sampled, nearly 60% of the recipients whose benefits were suspended because of outstanding warrants suffered from severe mental disabilities, including mental retardation and schizophrenia.57 The Los Angeles County Public Defender’s Office, in an informal survey of its clients who lost Social Security benefits because of Los Angeles County warrants, found an even higher percentage with severe mental impairments.58
During this era of "deinstitutionalization" (the closing of large public psychiatric institutions), recipients with mental illness have increasingly become caught in the criminal justice system. According to a report by the Council on State Governments, rates of mental illness among incarcerated individuals are "at least three to four times higher than the rates of severe mental illness in the general population."59 More than half the individuals incarcerated in jails and prisons have a mental health problem.60 In 2002, 35% of the SSI recipients were disabled due to mental illness.61 In light of the nexus between mental illness, reliance on federal benefits, and exposure to the criminal justice system, recipients with severe mental health problems are especially vulnerable to the FFP.
57 ASSESSMENT OF THE SUPPLEMENTAL SECURITY INCOME FUGITIVE FELON PROJECT, supra note 26, at 7 n.20. 58 Gerald McIntyre, Have You Seen a Fleeing Felon? Social Security Administration Targets SSI Recipients with Outstanding Warrants, 36 CLEARINGHOUSE REVIEW: JOURNAL OF POVERTY LAW & POLICY 474, 475 (Jan.-Feb. 2003), available at http://www.lanecountylegalservices.org/Have_you_seen_a_fleeing_felon.pdf. 59 Council of State Governments, Criminal Justice/Mental Health Consensus Project Report (June 2002), available at http://consensusproject.org/the_report/toc/executive-summary. See generally URBAN JUSTICE CENTER, PRISONS AND JAILS: HOSPITALS OF LAST RESORT (1999); URBAN JUSTICE CENTER, POLICE INTERACTIONS WITH INDIVIDUALS IN PSYCHIATRIC CRISIS, (Apr. 2002), both available at http://www.urbanjustice.org/ujc/publications/mental.html. 60 Bureau of Justice Statistics, U.S. Dept. of Justice, Mental Health Problems of Prison and Jail Inmates, NCJ 213600, 1 (Sept. 2006; revised Dec. 14, 2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf. 61 Kathryn J. Lewis, Income Injustice: The Impact of Welfare Reform’s Fleeing Felon Regulations on SSI Recipients, (Center on Juv. & Crim. Just., S.F., Cal.), June 2002, at 9, available at http://www.cjcj.org/pdf/welfare_reform.pdf.
13

VI. The Fugitive Felon Program Shifts The Cost Of Caring For Vulnerable Citizens From The Social Security Administration To States And Cities
According to SSA, the FFP creates significant savings. SSA asserts that between August 1996 and February 2003, discontinuance or denial of benefits under the program saved about $83.4 million.62 This number is misleading because it represents the gross savings from the program, not the net cost. SSA does not publish, or even track, the net cost of implementing the program.63
To begin to understand the net cost of the FFP, we will examine the case of Linda, a typical SSI recipient with mental illness in New York City.64 In 2007, Linda’s SSI benefits were suspended due to the FFP. During 2007, the annual savings in SSI to the federal government will be $7,476 ($623 over 12 months), and to New York State from its supplement will be $1,044 ($87 over 12 months). The gross savings of benefits not paid is $8,520.
The financial cost of suspending Linda’s benefits, however, will be significant. Linda will probably lose her apartment and become homeless. The provision of basic services (e.g., emergency room visits, hospitalizations, homeless shelters, etc.) to the average homeless person in New York City costs about $40,000 per year.65 If the cost of keeping Linda homeless is average, there will be a net cost of SSA's decision to suspend her of $31,480.66 Due to her psychiatric disability, however, providing basic services to Linda will probably cost more than $40,000. Her health will probably deteriorate, requiring intermittent hospitalizations costing about $1,200 per night.67 If she becomes one of the many homeless people with mental illness caught in the criminal justice system and incarcerated, her stay in a city jail will cost about $165 per night.68 These costs will be borne largely by New York State and New York City, not by SSA.
In addition to these direct financial costs, the FFP may also use scarce resources in the criminal justice system. To restore benefits, a recipient suspended under the FFP must contact the jurisdiction that issued the warrant and try to have it vacated. Because vacating a warrant is usually done through a judicial proceeding, judges, district attorneys, public defenders, and probation or parole officers are spending time and resources on useless proceedings to vacate warrants issued against people who police no longer want to apprehend. Their efforts would be better spent processing the cases of people who are actually wanted by the police.
Thus, while the FFP may save SSA money, it costs taxpayers and wastes the resources of the criminal justice system. If SSA's goal is to spend less money on our nation's poor, retired, and disabled, the correct approach would be to continue their benefits, not suspend them, so
62 ASSESSMENT OF THE SUPPLEMENTAL SECURITY INCOME FUGITIVE FELON PROJECT, supra note 26, at 6. 63 GAO REPORT, supra note 33, at 17. 64 “Linda” is a hypothetical SSI beneficiary, drawn from the authors’ experience representing many recipients. 65 Dennis P. Culhane, Stephen Metraux & Trevor Hadley, Public Service Reductions Associated With Placement Of Homeless Persons With Severe Mental Illness In Supportive Housing, HOUSING POLICY DEBATE, VOL. 13, No. 1 (Fannie Mae Foundation), 2002, at 107 available at http://www.fanniemaefoundation.org/programs/hpd/pdf/hpd_1301_culhane.pdf. 66 I.e., for the government to finance the annual SSI income for an individual ($8,520) is $31,480 less costly than financing the cost of services for the average homeless person in New York City per year ($40,000). 67 New York City Dept. of Health and Mental Hygiene, Division of Mental Hygiene, Housing Services, Mission and Background, available at http://www.nyc.gov/html/doh/html/dmh/dmh-housing.shtml. 68 Id. See also THE PARTNERSHIP TO END LONG-TERM HOMELESSNESS, COSTS OF SERVING HOMELESS PEOPLE IN NINE CITIES, at 4 (Nov. 2004), available at http://documents.csh.org/documents/ke/csh_lewin2004.pdf.
14

that they can stay out of costly jails, hospitals, shelters, and our country's backlogged criminal courts.
Of course, the mission of SSA, as President Roosevelt envisioned it, is not to save money. It is to enhance our nation's social security by providing for people in need. Judged by SSA's true mission, the FFP is a miserable failure.
VII. Recommendations
The only legitimate public safety concern behind the FFP could be achieved by simply permitting SSA to share information regarding recipients’ whereabouts with law enforcement agencies. Congress should repeal the sections of the PRWORA and SSPA that make people ineligible for benefits. Until that happens, we make the following recommendations:
A. The Social Security Administration Should Follow the Law and Suspend Benefits Only If People Are Actually Fleeing From Justice
Instead of arbitrarily limiting it to residents of New York, Connecticut, and Vermont, SSA should apply the acquiescence ruling made pursuant to Fowlkes v. Adamec to all recipients and suspend benefits only when a court or other appropriate body has found that a recipient was fleeing to avoid prosecution or confinement or was violating probation or parole.
B. The Social Security Administration Should Refine Its Data-Matching System To Guard Against Mistakes And Identity Theft
Because the consequences of a mistake or of identity theft are so dire, SSA personnel should double-check each potential match carefully before taking any action. SSA should also make sure that the warrant information in its notices is correct, and include more information in its suspension notices so that victims of identity theft and mistaken identity can clear the matter up more quickly.
C. The Social Security Administration Should Help People Obtain Information About Alleged Warrants/Violations
Currently, dealing with an FFP suspension is difficult even for seasoned legal services lawyers. For unrepresented disabled and retired people, it is even more so. They must deal with law enforcement agencies and courts in far away places in addition to SSA's own bureaucracy, and do so without the benefits they depend on. SSA should accommodate disabled and retired recipients and help them through this difficult process. SSA could accomplish this by obtaining and conveying to the recipient specific information regarding the warrant and the underlying charges, as well as the basis for issuing the warrant. SSA, at a minimum, should provide the recipient with a copy of the warrant, a telephone number and address for the court clerk, and contact information for local public defender and assigned counsel services.
15

 
 Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 1 of 23
ADRMOP,CLOSED,E−Filing,RELATE
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:08−cv−04735−CW

Martinez et al v. Astrue Assigned to: Hon. Claudia Wilken Demand: $0 Relate Case Case: 4:12−cv−05668−CW
Case in other court: Ninth Circuit Court of Appeals, 15−15635 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 10/15/2008 Date Terminated: 09/28/2009 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Rosa Martinez on behalf of themselves and all others similarly situated

represented by David H. Fry Munger Tolles & Olson LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 415−512−4082 Fax: 415−699−6982 Email: frydh@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. Stacey Hawver Legal Aid Society of San Mateo County 521 East 5th Avenue San Mateo, CA 94402 (650) 558−0915 Fax: (650) 558−0673 Email: mshawver@legalaidsmc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Margaret Rich Justice in Aging 1330 Broadway, Suite 525 Oakland, CA 94612 510−663−1055 Email: arich@justiceinaging.org ATTORNEY TO BE NOTICED

Christopher Allen Douglas East Bay Community Law Center 3130 Shattuck Ave. Berkeley, CA 94705 5102696611 Fax: 5108491536 Email: cdouglas@ebclc.org ATTORNEY TO BE NOTICED

Emilia Sicilia Urban Justice Center 123 William Street, 16th Floor New York, NY 10038 (646) 602−5668 Email: esicilia@urbanjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED

Gerald Andrew McIntyre Justice in Aging 3660 Wilshire Blvd. Suite 718

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 2 of 23

Los Angeles, CA 90010 213−674−2900 Fax: 213−550−0501 Email: gmcintyre@justiceinaging.org ATTORNEY TO BE NOTICED

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

Jeremy Sergio Kroger Munger Tolles and Olson LLP 560 Mission Street 27th Floor San Francisco, CA 94105−4077 415−512−4000 Email: Jeremy.Kroger@mto.com ATTORNEY TO BE NOTICED

Kevin Edward Prindiville Justice in Aging 1330 Broadway Suite 525 Oakland, CA 94612 510−663−1055 x1 Fax: 510−663−1051 Email: kprindiville@justiceinaging.org ATTORNEY TO BE NOTICED

Marilyn Lee Holle 350 South Bixel Street, Suite 290 Los Angeles, CA 90017 213−213−8000 Fax: 213−213−8001 Email: marilyn.holle@disabilityrightsca.org ATTORNEY TO BE NOTICED

Mark R. Conrad Munger Tolles & Olson LLP 560 Mission Street, 27th Floor San Francisco, CA 94105−2907 415−512−4064 Email: Mark.Conrad@mto.com ATTORNEY TO BE NOTICED

William G. Lienhard Urban Justice Center 123 William Street, 16th Floor New York, NY 10038 (646) 602−5667 Fax: (212) 533−4598 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Jimmy Howard on behalf of themselves & all others similarly situated

represented by David H. Fry (See above for address) LEAD ATTORNEY

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 3 of 23

ATTORNEY TO BE NOTICED

M. Stacey Hawver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

Christopher Allen Douglas (See above for address) ATTORNEY TO BE NOTICED

Emilia Sicilia (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gerald Andrew McIntyre (See above for address) ATTORNEY TO BE NOTICED

Jennifer Parish , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jeremy Sergio Kroger (See above for address) ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Marilyn Lee Holle (See above for address) ATTORNEY TO BE NOTICED

Mark R. Conrad (See above for address) ATTORNEY TO BE NOTICED

William G. Lienhard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Roberta Dobbs on behalf of themselves and all others similarly situated

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

David H. Fry (See above for address) ATTORNEY TO BE NOTICED

Gerald Andrew McIntyre (See above for address) ATTORNEY TO BE NOTICED

Jeremy Sergio Kroger

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 4 of 23

(See above for address) ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Mark R. Conrad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Brent A. Roderick on behalf of themselves and all others similarly situated

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

David H. Fry (See above for address) ATTORNEY TO BE NOTICED

Gerald Andrew McIntyre (See above for address) ATTORNEY TO BE NOTICED

Jeremy Sergio Kroger (See above for address) ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Mark R. Conrad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sharon D. Rozier on behalf of themselves and all others similarly situated

represented by Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

David H. Fry (See above for address) ATTORNEY TO BE NOTICED

Gerald Andrew McIntyre (See above for address) ATTORNEY TO BE NOTICED

Jeremy Sergio Kroger (See above for address) ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Mark R. Conrad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 5 of 23

Joseph Sutrynowicz on behalf of themselves and all others similarly situated

Anna Margaret Rich (See above for address) ATTORNEY TO BE NOTICED

David H. Fry (See above for address) ATTORNEY TO BE NOTICED

Gerald Andrew McIntyre (See above for address) ATTORNEY TO BE NOTICED

Jeremy Sergio Kroger (See above for address) ATTORNEY TO BE NOTICED

Kevin Edward Prindiville (See above for address) ATTORNEY TO BE NOTICED

Mark R. Conrad (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Michael J. Astrue Commissioner of Social Security, in his official capacity

represented by Lily Sara Farel Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 202−353−7633 Fax: 202−616−8460 Email: lily.farel@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria R. Carradero Curley, Hurtgen & Johnsrud LLP 4400 Bohannon Drive Suite 230 Menlo Park, CA 94025 650.600.5307 Fax: 650.323.1002 Email: vcarradero@chjllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Y.S. Cheng U.S. Attorney's Office 450 Golden Gate Ave., 10th Fl. San Francisco, CA 94102−3495 415−436−6813 Fax: 415−436−6748 Email: andrew.cheng@usdoj.gov ATTORNEY TO BE NOTICED
Michael Thomas Pyle United States Attorney's Office 150 Almaden Blvd., Suite 900 San Jose, CA 95113 408−535−5087 Fax: 408−535−5081

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 6 of 23

Email: michael.t.pyle@usdoj.gov ATTORNEY TO BE NOTICED

Intervenor
County of Santa Clara TERMINATED: 09/24/2009

represented by S. Chandler Visher Law Offices of S. Chandler Visher 44 Montgomery Street Suite 3705 San Francisco, CA 94104 415−901−0500 Fax: 415−901−0504 Email: chandler@visherlaw.com ATTORNEY TO BE NOTICED

Intervenor Sylvia Curtis

represented by Sylvia Curtis 7537 W County Rd., 200N Brownstown, IN 47220 PRO SE

Date Filed 10/15/2008
10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/15/2008 10/17/2008

# Docket Text
1
***PLEASE SEE REFILED DOCUMENT # 39 ***
CLASS ACTION COMPLAINT − [Summons Issued] against Michael J. Astrue, Commissioner of Social Security, (Filing Fee: $350.00, Receipt Number 34611024362] Filed by Plaintiffs Jimmy Howard & Rosa Martinez. (tn, COURT STAFF) (Filed on 10/15/2008) Modified on 12/15/2008 (cp, COURT STAFF). (cp, COURT STAFF). (Entered: 10/16/2008)
2 SUMMONS Issued as to Defendant Michael J. Astrue, Commissioner of Social Security. (tn, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/16/2008)
3 ADR SCHEDULING ORDER: Joint Case Management Statement due 1/13/2009 & InitialCase Management Conference set for 1/20/2009 at 3:00 PM.. (tn, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/16/2008)
4 CERTIFICATION of Interested Parties Filed by Plaintiffs Jimmy Howard & Rosa Martinez. (tn, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/16/2008)
5 PROOF OF SERVICE Filed by Plaintiffs Jimmy Howard & Rosa Martinez of re 1 Class Action Complaint, 2 Summons in a Civil Case & 4 Certification of Interested Parties. (tn, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/16/2008)
6 PROOF OF SERVICE Filed by Plaintiffs Jimmy Howard & Rosa Martinez of re 1 Class Action Complaint & Civil Cover Sheet, 2 Summons in a Civil Case & 4 Certification of Interested Parties. (tn, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/16/2008)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Entered: 10/16/2008)
7 DECLINATION to Proceed Before a United States Magistrate Judge & REQUEST for Reassignment to a United States District Court Judge Filed by PlaintiffsJimmy Howard & Rosa Martinez. (tn, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/16/2008)
8 PROOF OF SERVICE Filed by Plaintiffs Jimmy Howard & Rosa Martinez of re 7 Declination to Proceed Before a U.S. Magistrate Judge & Request for Reassignment. (tn, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/16/2008)
9 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (lmh, COURT STAFF) (Filed on 10/17/2008) (Entered: 10/17/2008)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 7 of 23

10/17/2008 10/17/2008 10/17/2008

10 Ex Parte Application (MOTION) FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING ISSUANCE OF A PRELIMINARY INJUNCTION filed by Rosa Martinez, Jimmy Howard. Motion Hearing set for 10/17/2008 10:00 AM in Courtroom E, 15th Floor, San Francisco. (Fry, David) (Filed on 10/17/2008) Modified on 10/20/2008 (cp, COURT STAFF). (Entered: 10/17/2008)
11 MEMORANDUM in support of re 10 Ex Parte Application (MOTION) FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING ISSUANCE OF A PRELIMINARY INJUNCTION filed by Rosa Martinez, Jimmy Howard. (Related document(s) 10 ) (Fry, David) (Filed on 10/17/2008) Modified on 10/20/2008 (cp, COURT STAFF). (Entered: 10/17/2008)
12

***PLEASE SEE REFILED DOCUMENT # 40 ***

10/17/2008
10/17/2008
10/17/2008 10/17/2008 10/17/2008 10/17/2008 10/17/2008 10/17/2008 10/20/2008 10/20/2008 10/20/2008

Declaration of ROSA MARTINEZ in Support of 10 Ex Parte Application (MOTION) FOR A TEMPORARY RESTRAINING ORDER filed by Rosa Martinez, Jimmy Howard. (Related document(s) 10 ) (Fry, David) (Filed on 10/17/2008) Modified on 10/20/2008 (cp, COURT STAFF). Modified on 10/31/2008 (cp, COURT STAFF). Modified on 12/15/2008 (cp, COURT STAFF). Modified on 12/15/2008 (cp, COURT STAFF). (cp, COURT STAFF). (Entered: 10/17/2008)
13 Declaration of DAVID H. FRY in Support of 10 Ex Parte Application (MOTION) FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING ISSUANCE OF A PRELIMINARY INJUNCTION filed by Rosa Martinez, Jimmy Howard. (Related document(s) 10 ) (Fry, David) (Filed on 10/17/2008) Modified on 10/20/2008 (cp, COURT STAFF). (Entered: 10/17/2008)
14 Proposed Order re 10 Ex Parte Application (MOTION) FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE REGARDING ISSUANCE OF A PRELIMINARY INJUNCTION by Rosa Martinez, Jimmy Howard. (Fry, David) (Filed on 10/17/2008) Modified on 10/20/2008 (cp, COURT STAFF). (Entered: 10/17/2008)
15 Proposed Order TO SHOW CAUSE REGARDING THE ISSUANCE OF A PRELIMINARY INJUNCTION by Rosa Martinez. (Fry, David) (Filed on 10/17/2008) (Entered: 10/17/2008)
16 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Claudia Wilken for all further proceedings. Judge Magistrate Judge Elizabeth D. Laporte no longer assigned to the case.. Signed by Executive Committee on 10/17/08. (as, COURT STAFF) (Filed on 10/17/2008) (Entered: 10/17/2008)
17 CERTIFICATE OF SERVICE by Rosa Martinez VIA FEDERAL EXPRESS (Fry, David) (Filed on 10/17/2008) (Entered: 10/17/2008)
18 CERTIFICATE OF SERVICE by Rosa Martinez VIA HAND DELIVERY (Fry, David) (Filed on 10/17/2008) (Entered: 10/17/2008)
19 Letter from Victoria R. Carradero to Judge Wilken. (Carradero, Victoria) (Filed on 10/17/2008) (Entered: 10/17/2008)
20 ORDER re 10 DENYING PLAINTIFFS REQUEST FOR IMMEDIATE EX PARTE RELIEF AND SETTING BRIEFING SCHEDULE ON PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER. Signed by Judge Claudia Wilken on 10/17/08. (scc, COURT STAFF) (Filed on 10/17/2008) (Entered: 10/17/2008)
21 CERTIFICATE OF SERVICE by Rosa Martinez via U.S. Mail (Fry, David) (Filed on 10/20/2008) (Entered: 10/20/2008)
22 CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASE: Case Management Conference set for 1/20/2009 02:00 PM.. Signed by Judge CLAUDIA WILKEN on 10/20/08. (scc, COURT STAFF) (Filed on 10/20/2008) (Entered: 10/20/2008)
23 CERTIFICATE OF SERVICE by Rosa Martinez re 22 Case Management Scheduling Order (Fry, David) (Filed on 10/20/2008) (Entered: 10/20/2008)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 8 of 23

10/21/2008
10/21/2008 10/21/2008 10/21/2008 10/28/2008 10/30/2008 10/30/2008 10/30/2008 10/30/2008
10/31/2008 10/31/2008 10/31/2008 12/08/2008 12/08/2008 12/12/2008
12/12/2008

24 Declaration of Victoria R. Carradero in Support of Defendant's Opposition to Plaintiff's Motion for Temporary Restraining Order filed byMichael J. Astrue. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Carradero, Victoria) (Filed on 10/21/2008) (Entered: 10/21/2008)
25 Declaration of Michael Hanson in Support of Defendant's Opposition to Plaintiff's Motion for Temporary Restraining Order filed byMichael J. Astrue. (Attachments: # 1 Exhibit 1 − 8)(Carradero, Victoria) (Filed on 10/21/2008) (Entered: 10/21/2008)
26 MEMORANDUM in Opposition to Plaintiff's Motion for Temporary Restraining Order filed by Michael J. Astrue. (Carradero, Victoria) (Filed on 10/21/2008) Modified on 10/22/2008 (cp, COURT STAFF). (Entered: 10/21/2008)
27 NOTICE by Rosa Martinez, Jimmy Howard of Withdrawal of Motion for Temporary Restraining Order (Fry, David) (Filed on 10/21/2008) Modified on 10/22/2008 (cp, COURT STAFF). (Entered: 10/21/2008)
28 CERTIFICATE OF SERVICE by Rosa Martinez re 2 Summons Issued, 1 Complaint, 4 Certificate of Interested Entities (Fry, David) (Filed on 10/28/2008) (Entered: 10/28/2008)
29 MOTION for leave to appear in Pro Hac Vice − Emilia Sicilia ( Filing fee $ 210, receipt number 44611002775.) filed by Rosa Martinez. (cp, COURT STAFF) (Filed on 10/30/2008) (Entered: 11/03/2008)
30 MOTION for leave to appear in Pro Hac Vice − William G. Lienhard ( Filing fee $ 210, receipt number 44611002777.) filed by Jimmy Howard, Rosa Martinez. (cp, COURT STAFF) (Filed on 10/30/2008) (Entered: 11/03/2008)
31 MOTION for leave to appear in Pro Hac Vice − Jennifer Parish ( Filing fee $ 210, receipt number 44611002776.) filed by Jimmy Howard, Rosa Martinez. (cp, COURT STAFF) (Filed on 10/30/2008) (Entered: 11/03/2008)
32 CERTIFICATE OF SERVICE by Jimmy Howard, Rosa Martinez re 30 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 44611002777.), 29 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 44611002775.), 31 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 44611002776.) (cp, COURT STAFF) (Filed on 10/30/2008) (Entered: 11/03/2008)
33 ORDER by Judge Claudia Wilken granting 29 Motion for Pro Hac Vice − Emilia Sicilia (cp, COURT STAFF) (Filed on 10/31/2008) (Entered: 11/03/2008)
34 ORDER by Judge Claudia Wilken granting 30 Motion for Pro Hac Vice − William G. Lienhard (cp, COURT STAFF) (Filed on 10/31/2008) (Entered: 11/03/2008)
35 ORDER by Judge Claudia Wilken granting 31 Motion for Pro Hac Vice − Jennifer Parish (cp, COURT STAFF) (Filed on 10/31/2008) (Entered: 11/03/2008)
36 STIPULATION AND [PROPOSED] ORDER GRANTING PLAINTIFFS' REQUEST FOR ADMINISTRATIVE RELIEF (LOCAL RULE 7−11) by Rosa Martinez. (Fry, David) (Filed on 12/8/2008) (Entered: 12/08/2008)
37 Declaration of DAVID H. FRY in Support of 36 Stipulation filed byRosa Martinez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 36 ) (Fry, David) (Filed on 12/8/2008) (Entered: 12/08/2008)
38 ORDER re 36 granting as modified STIPULATION GRANTING PLAINTIFFS' REQUEST FOR ADMINISTRATIVE RELIEF (LOCAL RULE 7−11). Signed by Judge Claudia Wilken on 12/12/08. (scc, COURT STAFF) (Filed on 12/12/2008) (Entered: 12/12/2008)
39 COMPLAINT (Class Action) with Redacted Exhibits A−C against Michael J. Astrue Filed byRosa Martinez. (Fry, David) (Filed on 12/12/2008) Modified on 12/15/2008 (cp, COURT STAFF).

***RE−FILED PURSUANT TO ORDER # 38 ***

(Entered: 12/12/2008)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 9 of 23

12/12/2008

40 Declaration of Rosa Martinez in Support of 10 Motion for Temporary Restraining Order filed byRosa Martinez. (Related document(s) 10 ) (Fry, David) (Filed on 12/12/2008) Modified on 12/15/2008 (cp, COURT STAFF).

***RE−FILED PURSUANT TO ORDER # 38 ***

12/12/2008 12/16/2008
12/18/2008 12/30/2008 12/30/2008 12/30/2008 01/05/2009 01/05/2009
01/05/2009
01/06/2009 01/12/2009
01/12/2009 01/12/2009

(Entered: 12/12/2008)
41 AMENDED COMPLAINT (First)(Class Action) against Michael J. Astrue. Filed byRosa Martinez. (Fry, David) (Filed on 12/12/2008) (Entered: 12/12/2008)
42 STIPULATION and [Proposed] Order Granting Extension of Time to Respond to Plaintiffs' First Amended Complaint by Michael J. Astrue, Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Carradero, Victoria) (Filed on 12/16/2008) Modified on 12/17/2008 (cp, COURT STAFF). (Entered: 12/16/2008)
43 ORDER re 42 granting STIPULATION Granting Extension of Time to Respond to Plaintiffs' First Amended Complaint. Signed by Judge Claudia Wilken on 12/18/08. (scc, COURT STAFF) (Filed on 12/18/2008) (Entered: 12/18/2008)
44 MOTION to Continue Case Management Conference − Administrative Relief − Local Rule 7−11 filed by Michael J. Astrue. (Carradero, Victoria) (Filed on 12/30/2008) (Entered: 12/30/2008)
45 Declaration of Victoria R. Carradero in Support of 44 MOTION to Continue Case Management Conference − Administrative Relief − Local Rule 7−11 filed byMichael J. Astrue. (Related document(s) 44 ) (Carradero, Victoria) (Filed on 12/30/2008) (Entered: 12/30/2008)
46 Proposed Order re 44 MOTION to Continue Case Management Conference − Administrative Relief − Local Rule 7−11 by Michael J. Astrue. (Carradero, Victoria) (Filed on 12/30/2008) (Entered: 12/30/2008)
47 Memorandum in Opposition re 44 MOTION to Continue Case Management Conference − Administrative Relief − Local Rule 7−11 filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Conrad, Mark) (Filed on 1/5/2009) (Entered: 01/05/2009)
48 Declaration of Mark R. Conrad in Support of 47 Memorandum in Opposition, To Defendant's Motion for Administrative Relief to Continue the Case Management Conference filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 47 ) (Conrad, Mark) (Filed on 1/5/2009) (Entered: 01/05/2009)
49 Declaration of Gerald A. McIntyre in Support of 47 Memorandum in Opposition, To Defendant's Motion for Administrative Relief to Continue the Case Management Conference filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 47 ) (Conrad, Mark) (Filed on 1/5/2009) (Entered: 01/05/2009)
50 ORDER by Judge Claudia Wilken granting 44 Motion to Continue Case Management Conference − Administrative Relief − Local Rule 7−11 (scc, COURT STAFF) (Filed on 1/6/2009) (Entered: 01/06/2009)
51 MOTION for Preliminary Injunction and Memorandum of Law in Support Thereof filed by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. Motion Hearing set for 2/19/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
52 Declaration of Jeremy S. Kroger in Support of 51 MOTION for Preliminary Injunction filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 51 ) (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
53 Declaration of Roberta Dobbs in Support of 51 MOTION for Preliminary Injunction filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 10 of 23

01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009 01/12/2009

Sutrynowicz, Rosa Martinez. (Related document(s) 51 ) (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
54 Declaration of Rosa Martinez in Support of 51 MOTION for Preliminary Injunction filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 51 ) (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
55 Declaration of Joseph Sutrynowicz in Support of 51 MOTION for Preliminary Injunction filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 51 ) (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
56 Declaration of Tannitte Shufford in Support of 51 MOTION for Preliminary Injunction filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 51 ) (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
57 Declaration of Sharon Rozier in Support of 51 MOTION for Preliminary Injunction filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 51 ) (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
58 Proposed Order re 51 MOTION for Preliminary Injunction by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Conrad, Mark) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
59 MOTION to Certify Class filed by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. Motion Hearing set for 2/19/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: # 1 Proposed Order Proposed Order)(Conrad, Mark) (Filed on 1/12/2009) (Entered: 01/12/2009)
60 Declaration of Jeremy S. Kroger in Support of 59 MOTION to Certify Class filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 59 ) (Conrad, Mark) (Filed on 1/12/2009) (Entered: 01/12/2009)
61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction filed by Michael J. Astrue. Motion Hearing set for 2/19/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
62 Declaration of Vicki F. Mathews in Support of 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction filed byMichael J. Astrue. (Related document(s) 61 ) (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
63 Declaration of Deena P. Wilson in Support of Motion to Dismiss filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 1/12/2009) (cp, COURT STAFF). (Entered: 01/12/2009)
64 Declaration of Mary M. Kelly−Zaby in Support of 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction filed byMichael J. Astrue. (Related document(s) 61 ) (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
65 Declaration of Paul Fedderson in Support of 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction filed byMichael J. Astrue. (Related document(s) 61 ) (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
66 Declaration of Kathy Newman in Support of 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction filed byMichael J. Astrue. (Related document(s) 61 ) (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 11 of 23

01/12/2009 01/12/2009 01/12/2009 01/13/2009 01/13/2009 01/13/2009 01/13/2009 01/13/2009 01/13/2009 01/13/2009
01/13/2009 01/15/2009
01/15/2009
01/15/2009

67 Declaration of Michael Hanson in Support of 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction filed byMichael J. Astrue. (Related document(s) 61 ) (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (cp, COURT STAFF). (Entered: 01/12/2009)
68 MOTION to Dismiss as to Plaintiff Roderick filed by Michael J. Astrue. Motion Hearing set for 2/19/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
69 Declaration of Liana Mezo in Support of 68 MOTION to Dismiss as to Plaintiff Roderick filed byMichael J. Astrue. (Related document(s) 68 ) (Carradero, Victoria) (Filed on 1/12/2009) Modified on 1/13/2009 (cp, COURT STAFF). (Entered: 01/12/2009)
70 EXHIBITS re 69 Declaration in Support 1−6 to Mezo Declaration filed byMichael J. Astrue. (Related document(s) 69 ) (Carradero, Victoria) (Filed on 1/13/2009) (Entered: 01/13/2009)
71 EXHIBITS re 69 Declaration in Support 7−11 to Mezo Declaration filed byMichael J. Astrue. (Related document(s) 69 ) (Carradero, Victoria) (Filed on 1/13/2009) (Entered: 01/13/2009)
72 EXHIBITS re 67 Declaration in Support Exhibits 1−10 to Hanson Declaration filed byMichael J. Astrue. (Related document(s) 67 ) (Carradero, Victoria) (Filed on 1/13/2009) (Entered: 01/13/2009)
73 EXHIBITS re 67 Declaration in Support 11−23 to Hanson Declaration filed byMichael J. Astrue. (Related document(s) 67 ) (Carradero, Victoria) (Filed on 1/13/2009) (cp, COURT STAFF). (Entered: 01/13/2009)
74 EXHIBITS re 67 Declaration in Support 24−35 to Hanson Declaration filed byMichael J. Astrue. (Related document(s) 67 ) (Carradero, Victoria) (Filed on 1/13/2009) (cp, COURT STAFF). (Entered: 01/13/2009)
75 Motion to Change Time/Extend Time To File Opposition to Plaintiffs' Motion for Class Certification, Motion for Summary Judgment, Motion for Preliminary Injunction filed by Michael J. Astrue. (Carradero, Victoria) (Filed on 1/13/2009) Modified on 1/14/2009 (cp, COURT STAFF). (Entered: 01/13/2009)
76 Declaration of Victoria R. Carradero in Support of 75 Motion to Change Time/Extend Time To File Opposition to Plaintiffs' Motion for Class Certification, Motion for Summary Judgment, Motion for Preliminary Injunction filed byMichael J. Astrue. (Related document(s) 75 ) (Carradero, Victoria) (Filed on 1/13/2009) Modified on 1/14/2009 (cp, COURT STAFF). (Entered: 01/13/2009)
77 Proposed Order re 75 Motion to Change Time/Extend Time To File Opposition to Plaintiffs' Motion for Class Certification, Motion for Summary Judgment, Motion for Preliminary Injunction by Michael J. Astrue. (Carradero, Victoria) (Filed on 1/13/2009) Modified on 1/14/2009 (cp, COURT STAFF). (Entered: 01/13/2009)
78 MOTION for for Summary Adjudication of the Legality of Defendant's Policy Regarding "Fleeing" Beneficiaries; Memorandum of Law In Support Thereof filed by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. Motion Hearing set for 2/19/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Fry, David) (Filed on 1/15/2009) Modified on 1/16/2009 (cp, COURT STAFF). (Entered: 01/15/2009)
79 Declaration of Gerald A. McIntyre in Support of 78 MOTION for Summary Adjudication of the Legality of Defendant's Policy Regarding "Fleeing" Beneficiaries; Memorandum of Law In Support Thereof filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 78 ) (Fry, David) (Filed on 1/15/2009) Modified on 1/16/2009 (cp, COURT STAFF). (Entered: 01/15/2009)
80 ERRATA re 67 Declaration in Support, Michael Hanson in Support Of Motions To Dismiss Plaintiffs' Complaint by Michael J. Astrue. (Carradero, Victoria) (Filed on 1/15/2009) (Entered: 01/15/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 12 of 23

01/15/2009 01/16/2009 01/16/2009
01/21/2009 01/22/2009 01/23/2009 01/23/2009 01/23/2009 02/02/2009
02/03/2009
02/05/2009
02/05/2009 02/05/2009 02/05/2009 02/05/2009

81 Proposed Order re 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction by Michael J. Astrue. (Carradero, Victoria) (Filed on 1/15/2009) (Entered: 01/15/2009)
82 Memorandum in Opposition to Defendant's Motion to Change Briefing and Hearing Schedules for Plaintiffs' Motions for Class Certification and Preliminary Injunction filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Fry, David) (Filed on 1/16/2009) (Entered: 01/16/2009)
83 Declaration of Jeremy S. Kroger in Support of 82 Memorandum in Opposition, to Defendant's Motion to Change Briefing and Hearing Schedules filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 82 ) (Kroger, Jeremy) (Filed on 1/16/2009) (Entered: 01/16/2009)
84 ORDER by Judge Claudia Wilken denying 75 DENYING DEFENDANTS MOTION TO CONTINUE HEARING. (scc, COURT STAFF) (Filed on 1/21/2009) (Entered: 01/21/2009)
85 NOTICE by Michael J. Astrue Federal Defendant's Notice of Association of Counsel (Cheng, Andrew) (Filed on 1/22/2009) (Entered: 01/22/2009)
86 Proposed Order Administrative Motion and [Proposed] Order to Continue Hearing and Briefing Dates by One Week by Michael J. Astrue. (Cheng, Andrew) (Filed on 1/23/2009) (Entered: 01/23/2009)
87 Statement of Non−Opposition to Defendant's Administrative Motion To Continue Hearing and Briefing Dates by One Week by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Conrad, Mark) (Filed on 1/23/2009) (Entered: 01/23/2009)
88 ORDER re 86 granting Administrative Motion to Continue Hearing and Briefing Dates by One Week. Signed by Judge Claudia Wilken on 1/23/09. (scc, COURT STAFF) (Filed on 1/23/2009) (Entered: 01/23/2009)
89 STIPULATION and [Proposed] Order Granting Parties' Joint Request for Administrative Relief To Postpone Case Management Conference Until February 26, 2009 by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez, Michael J. Astrue. (Conrad, Mark) (Filed on 2/2/2009) Modified on 2/3/2009 (cp, COURT STAFF). (Entered: 02/02/2009)
90 ORDER re 89 GRANTING STIPULATION Granting Parties' Joint Request for Administrative Relief To Postpone Case Management Conference Until February 26, 2009. Case Management Conference set for 2/26/2009 02:00 PM.. Signed by Judge CLAUDIA WILKEN on 2/3/09. (scc, COURT STAFF) (Filed on 2/3/2009) (Entered: 02/03/2009)
91 Memorandum in Opposition re 51 MOTION for Preliminary Injunction, 78 Motion for Summary Adjudication of the Legality of Defendant's Policy Regarding "Fleeing" Beneficiaries, 59 MOTION to Certify Class filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 2/5/2009) Modified on 2/6/2009 (cp, COURT STAFF). (Entered: 02/05/2009)
92 Declaration of Paul Fedderson in Support of 91 Memorandum in Opposition, filed byMichael J. Astrue. (Related document(s) 91 ) (Carradero, Victoria) (Filed on 2/5/2009) (Entered: 02/05/2009)
93 Declaration of Deena WIlson in Support of motion to dismiss plaintiffs' complaint filed byMichael J. Astrue. (Related document(s) 91 ) (Carradero, Victoria) (Filed on 2/5/2009) Modified on 2/6/2009 (cp, COURT STAFF). (cp, COURT STAFF). (Entered: 02/05/2009)
94 Declaration of Vivian Yao in Support of 91 Memorandum in Opposition, filed byMichael J. Astrue. (Related document(s) 91 ) (Carradero, Victoria) (Filed on 2/5/2009) (cp, COURT STAFF). (Entered: 02/05/2009)
95 Declaration of Deborah Stachel in Support of motion for preliminary discovery filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 2/5/2009) Modified on 2/6/2009 (cp, COURT STAFF). (Entered: 02/05/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 13 of 23

02/05/2009 02/05/2009 02/05/2009 02/05/2009 02/05/2009
02/05/2009 02/05/2009 02/06/2009 02/06/2009 02/06/2009 02/06/2009 02/06/2009 02/06/2009 02/06/2009 02/06/2009 02/06/2009

96 Declaration of Michael Hanson in Support of 91 Memorandum in Opposition, filed byMichael J. Astrue. (Related document(s) 91 ) (Carradero, Victoria) (Filed on 2/5/2009) (Entered: 02/05/2009)
97 Declaration of Gareth Dence in Support of 91 Memorandum in Opposition, filed byMichael J. Astrue. (Related document(s) 91 ) (Carradero, Victoria) (Filed on 2/5/2009) (Entered: 02/05/2009)
98 Request for Judicial Notice re 91 Memorandum in Opposition, to Plaintiffs' Motions and in Support of Defendant's Motion for Preliminary Discovery filed byMichael J. Astrue. (Related document(s) 91 ) (Carradero, Victoria) (Filed on 2/5/2009) (Entered: 02/05/2009)
99 MOTION for Preliminary Discovery filed by Michael J. Astrue. Motion Hearing set for 2/26/2009 02:00 PM. (Carradero, Victoria) (Filed on 2/5/2009) Modified on 2/6/2009 (cp, COURT STAFF). (Entered: 02/05/2009)
100 Declaration of Victoria R. Carradero in Support of 98 Request for Judicial Notice, 91 Memorandum in Opposition, 99 MOTION for Discovery filed byMichael J. Astrue. (Attachments: # 1 Exhibit Exhibit 1 to Carradero Dec, # 2 Exhibit 2, # 3 Exhibit Ex. 2a, # 4 Exs. 3−5, # 5 Exhibit Exs 6−8, # 6 Exhibit Ex. 9, # 7 Exhibit ex. 9a, # 8 Exhibit Ex. 10, # 9 Exhibit Ex. 10a, # 10 Exhibit Ex. 11, # 11 Exhibit Ex. 11 a)(Related document(s) 98 , 91 , 99 ) (Carradero, Victoria) (Filed on 2/5/2009) Modified on 2/6/2009 (cp, COURT STAFF). (Entered: 02/05/2009)
101 EXHIBIT 12 (part 1 of 2) re 100 Declaration in Support,, of Defendant's Opposition to Plaintiffs' Motions filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/5/2009) Modified on 2/9/2009 (cp, COURT STAFF). (Entered: 02/05/2009)
102 EXHIBITS re 100 Declaration in Support,, Ex. 12 (part 2 of 2) to Carradero Declaration filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/5/2009) Modified on 2/9/2009 (cp, COURT STAFF). (Entered: 02/06/2009)
103 EXHIBITS re 100 Declaration in Support,, Ex. 13 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered: 02/06/2009)
104 EXHIBITS re 100 Declaration in Support,, Ex. 13a−14 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered: 02/06/2009)
105 EXHIBITS re 100 Declaration in Support,, Ex. 15 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered: 02/06/2009)
106 EXHIBITS re 100 Declaration in Support,, Ex. 15a to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered: 02/06/2009)
107 EXHIBITS re 100 Declaration in Support,, Ex. 16 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered: 02/06/2009)
108 EXHIBITS re 100 Declaration in Support,, Exs. 16a − 18 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) Modified on 2/9/2009 (cp, COURT STAFF). (Entered: 02/06/2009)
109 EXHIBITS re 100 Declaration in Support,, Ex. 19 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered: 02/06/2009)
110 EXHIBITS re 100 Declaration in Support,, Ex. 20 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) Modified on 2/9/2009 (cp, COURT STAFF). (Entered: 02/06/2009)
111 EXHIBITS re 100 Declaration in Support,, Ex. 21 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered:

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 14 of 23

02/06/2009 02/06/2009 02/11/2009 02/12/2009
02/12/2009 02/18/2009
02/24/2009 02/24/2009 02/28/2009 02/28/2009 02/28/2009 03/04/2009 03/05/2009 03/06/2009 03/06/2009

02/06/2009)
112 EXHIBITS re 100 Declaration in Support,, Ex. 21a−22 to Carradero Dec filed byMichael J. Astrue. (Related document(s) 100 ) (Carradero, Victoria) (Filed on 2/6/2009) (Entered: 02/06/2009)
113 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 2/6/2009) (Entered: 02/06/2009)
114 STIPULATION and [Proposed] Order to Continue Dates by Michael J. Astrue, Jimmy Howard, Rosa Martinez. (Cheng, Andrew) (Filed on 2/11/2009) Modified on 2/12/2009 (cp, COURT STAFF). (Entered: 02/11/2009)
115 Omnibus Brief in support of re 51 MOTION for Preliminary Injunction, Motion for Summary Adjudication of the Legality of Defendant's Policy Regarding "Fleeing" Beneficiaries, 59 MOTION to Certify Class, and in OPPOSITION to re 68 MOTION to Dismiss as to Plaintiff Roderick, 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction, 78 filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Related document(s) 51 , 68 , 61 , 78 , 59 ) (Conrad, Mark) (Filed on 2/12/2009) Modified on 2/13/2009 (cp, COURT STAFF). (Entered: 02/12/2009)
116 Memorandum in Opposition re 99 MOTION for Preliminary Discovery filed byJimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez. (Conrad, Mark) (Filed on 2/12/2009) (Entered: 02/12/2009)
117 ORDER re 114 granting as modified STIPULATION to Continue Dates. Initial Case Management Conference set for 3/12/2009 02:00 PM. Motion Hearing set for 3/12/2009 02:00 PM.. Signed by Judge Claudia Wilken on 2/18/09. (scc, COURT STAFF) (Filed on 2/18/2009) Modified on 2/19/2009 (cp, COURT STAFF). (Entered: 02/18/2009)
CASE REFERRED to Magistrate Judge Magistrate Judge Edward M. Chen for Settlement (wh, COURT STAFF) (Filed on 2/24/2009) (Entered: 02/24/2009)
118 ORDER − Notice of Settlement Conference and Settlement Conference Order. Settlement Conference set for 3/6/2009 01:30 PM. Signed by Magistrate Judge Edward M. Chen on 2/24/2009. (emcsec, COURT STAFF) (Filed on 2/24/2009) (Entered: 02/24/2009)
119 Reply Memorandum re 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 2/28/2009) (Entered: 02/28/2009)
120 Declaration of Geralyn Gulseth in Support of 119 Reply Memorandum filed byMichael J. Astrue. (Related document(s) 119 ) (Carradero, Victoria) (Filed on 2/28/2009) (Entered: 02/28/2009)
121 Declaration of Michael Hanson in Support of 119 Reply Memorandum filed byMichael J. Astrue. (Related document(s) 119 ) (Carradero, Victoria) (Filed on 2/28/2009) (Entered: 02/28/2009)
122 NOTICE by Michael J. Astrue Notice of Unavailability (Carradero, Victoria) (Filed on 3/4/2009) (Entered: 03/04/2009)
123 JOINT CASE MANAGEMENT STATEMENT filed by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez, Michael J. Astrue. (Conrad, Mark) (Filed on 3/5/2009) Modified on 3/6/2009 (cp, COURT STAFF). (Entered: 03/05/2009)
124 NOTICE by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez Notice Regarding Mediation Results (Fry, David) (Filed on 3/6/2009) (Entered: 03/06/2009)
125 Minute Entry: Settlement Conference held 3/6/2009. Case did not settle. Further Settlement Conference scheduled for 3/6/2009 01:30 PM; Court will not issue scheduling order. (Date Filed: 3/6/2009). (Court Reporter: Not Recorded.). (emcsec, COURT STAFF) (Date Filed: 3/6/2009) Modified on 3/10/2009 (cp, COURT STAFF). (Entered: 03/09/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 15 of 23

03/09/2009 03/09/2009 03/12/2009 03/12/2009 03/12/2009 03/13/2009 03/30/2009 03/30/2009 03/31/2009 03/31/2009 03/31/2009 06/17/2009
06/19/2009 06/30/2009
07/07/2009

126 NOTICE by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez re: Second Mediation Results (Conrad, Mark) (Filed on 3/9/2009) (Entered: 03/09/2009)
127 Minute Entry: Further Settlement Conference held 3/9/2009. Case did not settle. No Further Settlement Conference scheduled. (Date Filed: 3/9/2009). (Court Reporter: Not Recorded.). (emcsec, COURT STAFF) (Date Filed: 3/9/2009) Modified on 3/11/2009 (cp, COURT STAFF). (Entered: 03/10/2009)
128 NOTICE by Michael J. Astrue NOTICE OF UNAVAILABILITY (Carradero, Victoria) (Filed on 3/12/2009) (Entered: 03/12/2009)
129 STIPULATION and (PROPOSED) ORDER to continue hearing dates to April 2, 2009 by Michael J. Astrue. (Carradero, Victoria) (Filed on 3/12/2009) Modified on 3/13/2009 (cp, COURT STAFF). (Entered: 03/12/2009)
130 STIPULATION and [Proposed] Order to Continue Dates by Michael J. Astrue. (Cheng, Andrew) (Filed on 3/12/2009) (Entered: 03/12/2009)
131 ORDER re 130 granting STIPULATION to Continue Dates. Case Management Conference set for 4/2/2009 02:00 PM. Motion Hearing set for 4/2/2009 02:00 PM.. Signed by Judge Claudia Wilken on 3/13/09. (scc, COURT STAFF) (Filed on 3/13/2009) (Entered: 03/13/2009)
132 Minute Entry: Settlement placed on the record 3/30/2009. Case settled. (Date Filed: 3/30/2009). (Court Reporter: FTR 03302009 (9:09 − 9:19).). (emcsec, COURT STAFF) (Date Filed: 3/30/2009) (Entered: 03/30/2009)
133 NOTICE of Withdrawal of Defendant's Pending Motions to Dismiss by Michael J. Astrue re 68 MOTION to Dismiss as to Plaintiff Roderick, 61 MOTION to Dismiss first amended complaint for Lack of Jurisdiction (Carradero, Victoria) (Filed on 3/30/2009) Modified on 3/31/2009 (cp, COURT STAFF). (Entered: 03/30/2009)
134 NOTICE by Jimmy Howard, Roberta Dobbs, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Rosa Martinez Notice of Withdrawal of Motion for Class Certification, Motion for Summary Adjudication, and Motion for Preliminary Injunction (Kroger, Jeremy) (Filed on 3/31/2009) (Entered: 03/31/2009)
135 NOTICE by Michael J. Astrue of Withdrawal Of Defendant's Motion for Preliminary Discovery (Carradero, Victoria) (Filed on 3/31/2009) (Entered: 03/31/2009)
136 CLERKS NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Conference set for 6/23/2009 02:00 PM. (scc, COURT STAFF) (Filed on 3/31/2009) (Entered: 03/31/2009)
137 STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE UNTIL JULY 7, 2009 by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Michael J. Astrue. (Conrad, Mark) (Filed on 6/17/2009) Modified on 6/18/2009 (cp, COURT STAFF). (Entered: 06/17/2009)
138 ORDER re 137 GRANTING STIPULATION TO CONTINUE CASE MANAGEMENT CONFERENCE UNTIL JULY 7, 2009. Case Management Conference set for 7/7/2009 02:00 PM.. Signed by Judge CLAUDIA WILKEN on 6/19/09. (scc, COURT STAFF) (Filed on 6/19/2009) (Entered: 06/19/2009)
139 JOINT CASE MANAGEMENT STATEMENT ON STATUS OF LITIGATION AND SETTLEMENT filed by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Michael J. Astrue. (Conrad, Mark) (Filed on 6/30/2009) Modified on 7/1/2009 (cp, COURT STAFF). (Entered: 06/30/2009)
140 Minute Entry: Initial Case Management Conference held on 7/7/2009 before Claudia Wilken (Date Filed: 7/7/2009). Fairness Hearing set for 9/24/2009 02:00 PM. Motion Hearing re preliminary approval of settlement set for 8/11/2009 02:00 PM. (Court Reporter Raynee Mercado.) (scc, COURT STAFF) (Date Filed: 7/7/2009) (Entered: 07/13/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 16 of 23

07/21/2009 07/21/2009
07/21/2009
07/21/2009
08/11/2009 08/11/2009
08/12/2009 08/12/2009 08/24/2009 08/24/2009 08/24/2009 08/31/2009 09/10/2009

141 STIPULATION OF SETTLEMENT by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Michael J. Astrue. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Conrad, Mark) (Filed on 7/21/2009) Modified on 7/22/2009 (cp, COURT STAFF). (Entered: 07/21/2009)
142 MOTION for Preliminary Approval of Class Action Settlement, Class Certification, and Appointment of Class Counsel, and Directing Class Notice and Setting Final Fairness Hearing filed by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. Motion Hearing set for 8/11/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Conrad, Mark) (Filed on 7/21/2009) Modified on 7/22/2009 (cp, COURT STAFF). (Entered: 07/21/2009)
143 Declaration of Gerald A. McIntyre in Support of 142 MOTION for Preliminary Approval of Class Action Settlement, Class Certification, and Appointment of Class Counsel, and Directing Class Notice and Setting Final Fairness Hearing filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Attachments: # 1 Exhibit 1: Stipulation of Settlement, # 2 Exhibit 2: Class Notice)(Related document(s) 142 ) (Conrad, Mark) (Filed on 7/21/2009) Modified on 7/22/2009 (cp, COURT STAFF). (Entered: 07/21/2009)
144 Proposed Order re 142 MOTION for Preliminary Approval of Class Action Settlement, Class Certification, and Appointment of Class Counsel, and Directing Class Notice and Setting Final Fairness Hearing by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Attachments: # 1 Exhibit A: Class Notice)(Conrad, Mark) (Filed on 7/21/2009) Modified on 7/22/2009 (cp, COURT STAFF). (Entered: 07/21/2009)
145 NOTICE by Michael J. Astrue NOTICE OF UNAVAILABILITY (Carradero, Victoria) (Filed on 8/11/2009) (Entered: 08/11/2009)
147 Minute Entry: Motion Hearing held on 8/11/2009 before Claudia Wilken (Date Filed: 8/11/2009) re 142 MOTION for Preliminary Approval of Class Action Settlement, Class Certification, and Appointment of Class Counsel, and Directing Class Notice and Setting Final Fairness Hearing filed by Roberta Dobbs, Joseph Sutrynowicz, Rosa Martinez, Sharon D. Rozier, Brent A. Roderick, Jimmy Howard. Fairness Hearing set for 9/24/2009 02:00 PM. (Court Reporter Sarah Goekler, pro tem.) (scc, COURT STAFF) (Date Filed: 8/11/2009) (Entered: 08/14/2009)
146 ORDER by Judge Claudia Wilken granting 142 MOTION for Preliminary Approval of Class Action Settlement, Class Certification, and Appointment of Class Counsel, and Directing Class Notice and Setting Final Fairness Hearing (Attachments: # 1 Exhibit A − Notice of Proposed Class Action Settlement and Fairness Hearing) (scc, COURT STAFF) (Filed on 8/12/2009) (Entered: 08/12/2009)
Set/Reset Hearings: Fairness Hearing set for 9/24/2009 02:00 PM. (scc, COURT STAFF) (Filed on 8/12/2009) (Entered: 08/12/2009)
148 STIPULATION and [Proposed] Order Regarding Sealing of Documents by Michael J. Astrue. (Carradero, Victoria) (Filed on 8/24/2009) (Entered: 08/24/2009)
149 MOTION for Administrative Relief Regarding Sealing of Documents [L.R. 3−17(d), 7−11, 79−5] re 148 Stipulation filed by Michael J. Astrue. (Carradero, Victoria) (Filed on 8/24/2009) Modified on 8/25/2009 (cp, COURT STAFF). (Entered: 08/24/2009)
150 Declaration of Victoria R. Carradero in Support of Defendant's Motion for Administrative Relief Regarding Sealing of Documents filed byMichael J. Astrue. (Attachments: # 1 Exhibit A − F)(Related document(s) 149 ) (Carradero, Victoria) (Filed on 8/24/2009) (Entered: 08/24/2009)
151 Statement of Non−Opposition To Defendant's Administrative Motion Re Sealing of Documents filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Kroger, Jeremy) (Filed on 8/31/2009) (Entered: 08/31/2009)
152 MOTION for Extension of Time to File Objections to Proposed Settlement filed by Santa Clara County 70 West Hedding Street. (Visher, S.) (Filed on 9/10/2009) (Entered: 09/10/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 17 of 23

09/10/2009 09/10/2009 09/10/2009 09/10/2009 09/10/2009 09/14/2009
09/14/2009 09/15/2009 09/15/2009
09/16/2009 09/16/2009 09/17/2009 09/17/2009 09/17/2009 09/18/2009
09/18/2009

153 (Proposed) OBJECTIONS to Proposed Settlement by Santa Clara County 70 West Hedding Street. (Visher, S.) (Filed on 9/10/2009) Modified on 9/11/2009 (cp, COURT STAFF). (Entered: 09/10/2009)
154 DECLARATION of S. Chandler Visher in support of re 153 Objection to Proposed Settlement by Santa Clara County 70 West Hedding Street. (Visher, S.) (Filed on 9/10/2009) Modified on 9/11/2009 (cp, COURT STAFF). (Entered: 09/10/2009)
155 DECLARATION of Daniel Rosenthal in support of re 153 Objection to Proposed Settlement by Santa Clara County 70 West Hedding Street. (Visher, S.) (Filed on 9/10/2009) Modified on 9/11/2009 (cp, COURT STAFF). (Entered: 09/10/2009)
156 First MOTION to Intervene to Object to Settlement filed by Santa Clara County 70 West Hedding Street. Motion Hearing set for 10/15/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Visher, S.) (Filed on 9/10/2009) (Entered: 09/10/2009)
157 Proposed Order re 152 MOTION for Extension of Time to File Objections to Proposed Settlement by Santa Clara County 70 West Hedding Street. (Visher, S.) (Filed on 9/10/2009) (Entered: 09/11/2009)
158 Statement re 152 MOTION for Extension of Time to File Objections to Proposed Settlement by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on 9/14/2009) (Entered: 09/14/2009)
159 Proposed Order re 156 First MOTION to Intervene to Object to Settlement by County of Santa Clara. (Visher, S.) (Filed on 9/14/2009) (Entered: 09/14/2009)
160 Memorandum in Opposition re 152 MOTION for Extension of Time to File Objections to Proposed Settlement filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 9/15/2009) (Entered: 09/15/2009)
161 STIPULATION and [Proposed] Order Setting Accelerated Briefing and Hearing Schedule on Motion to Intervene by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz, Michael J. Astrue, County of Sant Clara. (Conrad, Mark) (Filed on 9/15/2009) Modified on 9/16/2009 (cp, COURT STAFF). (Entered: 09/15/2009)
162 ORDER re GRANTING 161 Stipulation and Setting Accelerated Briefing and Hearing Schedule on Motion to Intervene. Signed by Judge Claudia Wilken on 9/16/2009. (cwlc2, COURT STAFF) (Filed on 9/16/2009) (Entered: 09/16/2009)
163 ORDER by Judge Claudia Wilken granting 152 County of Santa Clara's Motion for Extension of Time to File Objections to Proposed Settlement (cwlc2, COURT STAFF) (Filed on 9/16/2009) (Entered: 09/16/2009)
Set/Reset Deadlines as to 156 First MOTION to Intervene to Object to Settlement. Motion Hearing set for 9/24/2009 02:00 PM. (cp, COURT STAFF) (Filed on 9/17/2009) (Entered: 09/17/2009)
164 CERTIFICATE OF SERVICE re orders 163 , 162 (cp, COURT STAFF) (Filed on 9/17/2009) (Entered: 09/17/2009)
165 OBJECTIONS to Stipulation of Settlement by County of Santa Clara. (Visher, S.) (Filed on 9/17/2009) Modified on 9/18/2009 (cp, COURT STAFF). (Entered: 09/17/2009)
166 Memorandum in Opposition re 156 First MOTION to Intervene to Object to Settlement filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on 9/18/2009) (Entered: 09/18/2009)
167 Declaration of Mark R. Conrad in Support of 166 Memorandum in Opposition to Motion to Intervene filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Attachments: # 1 Exhibit A−J)(Related document(s) 166 ) (Conrad, Mark) (Filed on 9/18/2009) (Entered: 09/18/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 18 of 23

09/18/2009 09/21/2009
09/21/2009 09/21/2009 09/21/2009
09/21/2009 09/21/2009 09/22/2009 09/22/2009 09/23/2009 09/23/2009
09/24/2009 09/24/2009 09/24/2009 09/24/2009

168 JOINDER in Plaintiffs' Opposition to Motion to Intervene filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 9/18/2009) Modified on 9/21/2009 (cp, COURT STAFF). (Entered: 09/18/2009)
169 Transcript of Proceedings held on August 11, 2009, before Judge Claudia Wilken. Court Reporter/Transcriber Sarah Goekler, Telephone number (530)941−2621; email: sgoekler25@yahoo.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/17/2009. (slg, COURT STAFF) (Filed on 9/21/2009) (Entered: 09/21/2009)
170 Reply to Opposition to MOTION to Intervene filed by County of Santa Clara. Motion Hearing set for 9/24/2009 02:00 PM. (Visher, S.) (Filed on 9/21/2009) Modified on 9/22/2009 (cp, COURT STAFF). (Entered: 09/21/2009)
171 RESPONSE to re 165 Objection and REQUEST for Final Approval by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on 9/21/2009) (Entered: 09/21/2009)
172 Declaration of Gerald A. McIntyre in Support of 171 Response ( Non Motion ) to Objection and Request for Final Approval filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 171 ) (Conrad, Mark) (Filed on 9/21/2009) (Entered: 09/21/2009)
173 Proposed Order Denying Motion to Intervene, Finally Approving Settlement of Class Action, and Directing Entry of Final Judgment by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on 9/21/2009) (Entered: 09/21/2009)
174 Memorandum in Opposition to the County's Objections filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 9/21/2009) (Entered: 09/21/2009)
175 Declaration of Victoria Carradero in Support of 174 Memorandum in Opposition filed byMichael J. Astrue. (Related document(s) 174 ) (Carradero, Victoria) (Filed on 9/22/2009) (Entered: 09/22/2009)
176 Table of Contents/Table of Authorities re 174 Memorandum in Opposition by Michael J. Astrue (Carradero, Victoria) (Filed on 9/22/2009) Modified on 9/23/2009 (cp, COURT STAFF). (Entered: 09/22/2009)
177 ERRATA to Defendant's Administrative Motion to Seal by Michael J. Astrue. (Carradero, Victoria) (Filed on 9/23/2009) (Entered: 09/23/2009)
178 AMENDED STIPULATION AND (PROPOSED) ORDER RE SEALING OF DOCUMENTS 177 by Michael J. Astrue, Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Carradero, Victoria) (Filed on 9/23/2009) Modified on 9/24/2009 (cp, COURT STAFF). (Entered: 09/23/2009)
179 Proposed Order Denying Motion to Intervene, Finally Approving Settlement of Class Action, and Directing Entry of Final Judgment by Michael J. Astrue. (Pyle, Michael) (Filed on 9/24/2009) (Entered: 09/24/2009)
180 ORDER granting re 178 Amended Stipulation Regarding Sealing of Documents filed by Michael J. Astrue. Signed by Judge Claudia Wilken on 9/24/09. (fj, COURT STAFF) (Filed on 9/24/2009) (Entered: 09/24/2009)
181 PARTIAL SATISFACTION OF THE COUNTY'S OBJECTIONS TO THE SETTLEMENT by County of Santa Clara. (Visher, S.) (Filed on 9/24/2009) Modified on 9/25/2009 (cp, COURT STAFF). (Entered: 09/24/2009)
182 CLARIFICATIONS ON COUNTY PROCEDURES REGARDING OUTSTANDING WARRANTS by County of Santa Clara. (Visher, S.) (Filed on 9/24/2009) Modified on 9/25/2009 (cp, COURT STAFF). (Entered: 09/24/2009)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 19 of 23

09/24/2009 09/24/2009
09/29/2009 10/26/2009 10/26/2009 10/26/2009
10/26/2009 10/27/2009

183 ORDER by Judge Claudia Wilken denying 156 Motion to Intervene, Finally Approving Settlement of Class Action, and Directing Entry of Final Judgment (cwlc2, COURT STAFF) (Filed on 9/24/2009) (Entered: 09/24/2009)
184 Minute Entry: Motion Hearing held on 9/24/2009 before Claudia Wilken (Date Filed: 9/28/2009) re 156 First MOTION to Intervene to Object to Settlement is DENIED. The amicus status is GRANTED. Status Report due within 45 days. (Court Reporter Diane Skillman.) (fj, COURT STAFF) (Date Filed: 9/24/2009) Modified on 9/29/2009 (kc, COURT STAFF). (Entered: 09/28/2009)
185 JUDGMENT. Signed by Judge Claudia Wilken on 9/29/09. (scc, COURT STAFF) (Filed on 9/29/2009) (Entered: 09/29/2009)
186 Declaration of Deena P. Wilson in Support of Defendant's Motion to Dismiss Plaintiffs' Complaint (redacted version − replacement of document #63) filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 10/26/2009) Modified on 10/26/2009 (cp, COURT STAFF). (Entered: 10/26/2009)
187 Declaration of Deena P. Wilson in Support of Defendant's Motion to Dismiss Plaintiffs' Complaint (redacted version− replacement of document #93) filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 10/26/2009) Modified on 10/26/2009 (cp, COURT STAFF). (Entered: 10/26/2009)
188 Declaration of Vivian Yao in Support of Defendant's Opposition to Plaintiffs' Motions for Class Certification, Preliminary Injunction & Summary Adjudication (redacted version− replacement of document #94) filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 10/26/2009) Modified on 10/26/2009 (cp, COURT STAFF). (Entered: 10/26/2009)
189 Declaration of Michael Hanson with exhibits (redacted version− replacement of document #s 67, 73 & 74) filed byMichael J. Astrue. (Carradero, Victoria) (Filed on 10/26/2009) Modified on 10/26/2009 (cp, COURT STAFF). (Entered: 10/26/2009)
190 Declaration of Michael Hanson in support of defendant's motion to dismiss; Exhibits filed byMichael J. Astrue. (cp, COURT STAFF) (Filed on 10/27/2009)

10/27/2009

***FILED UNDER SEAL, UNREDACTED VERSION OF DOCUMENT #67, 73 AND 74*** (Entered: 10/28/2009)
191 Declaration of Deena P. Wilson in support of defendant's motion to dismiss plaintiff's complaint filed byMichael J. Astrue. (cp, COURT STAFF) (Filed on 10/27/2009)

***FILED UNDER SEAL, UNREDACTED VERSION OF DOCUMENT #63***

(Entered: 10/28/2009)
10/27/2009 192 Declaration of Deena P. Wilson in support of defendant's motion to dismiss plaintiff's complaint filed byMichael J. Astrue. (cp, COURT STAFF) (Filed on 10/27/2009)

***FILED UNDER SEAL, UNREDACTED VERSION OF DOCUMENT #93***

10/27/2009

(Entered: 10/28/2009)
193 Declaration of Vivian Yao in support of defendant's opposition to plaintiffs' motions for class certification, preliminary injunction & summary adjudication filed byMichael J. Astrue. (cp, COURT STAFF) (Filed on 10/27/2009)

***FILED UNDER SEAL, UNREDACTED VERSION OF DOCUMENT #94***

11/09/2009 12/21/2009

(Entered: 10/28/2009)
194 STATUS REPORT re Addresses by Michael J. Astrue. (Carradero, Victoria) (Filed on 11/9/2009) (Entered: 11/09/2009)
195 Transcript of FTR Proceedings held on 3/30/09, before Judge Edward M. Chen. Court Reporter/Transcriber Kelly Bryce, E−mail courtreporter232@aol.com Telephone number (510)828−9404. Tape Number: FTR 9:09−9:19. Per General Order No. 59 and

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 20 of 23

03/22/2010 03/23/2010
03/25/2010 05/20/2010 05/27/2010 06/08/2010 02/04/2011 02/23/2011 01/03/2012 01/06/2012 01/30/2012
01/30/2012
02/13/2012
02/21/2012
02/21/2012
02/21/2012

Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/22/2010. (Bryce, Kelly) (Filed on 12/21/2009) (Entered: 12/21/2009)
***Deadlines terminated re Release of Transcript Restriction re 195 Transcript. (jlm, COURT STAFF) (Filed on 3/22/2010) (Entered: 06/01/2010)
196 STIPULATION and [Proposed] Order Regarding Confidential Information by Michael J. Astrue, Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz . (Carradero, Victoria) (Filed on 3/23/2010) Modified on 3/24/2010 (cp, COURT STAFF). (Entered: 03/23/2010)
197 ORDER re 196 granting STIPULATION Regarding Confidential Information. Signed by Judge Claudia Wilken on 03/25/2010. (scc, COURT STAFF) (Filed on 3/25/2010) (Entered: 03/25/2010)
198 Letter from Victor Donovan re settlement agreement. (Attachments: # 1 envelope)(cp, COURT STAFF) (Filed on 5/20/2010) (Entered: 05/24/2010)
199 Letter Dated May 27, 2010. (ndr, COURT STAFF) (Filed on 5/27/2010) (Entered: 05/28/2010)
200 NOTICE of Appearance by Lily Sara Farel (Farel, Lily) (Filed on 6/8/2010) (Entered: 06/08/2010)
201 Letter from Wesley C. Nickelson inquiring re stipulation of settlement. (Attachments: # 1 envelope)(cp, COURT STAFF) (Filed on 2/4/2011) (Entered: 02/11/2011)
202 Letter from National Senior Citizens Law Center in response to Letter from Wesley C. Nickelson. (Rich, Anna) (Filed on 2/23/2011) (Entered: 02/23/2011)
203 NOTICE of Appearance of Mary Charles Robinson as pro Se (cp, COURT STAFF) (Filed on 1/3/2012) (Entered: 01/04/2012)
204 Letter from Mark R. Conrad to the Hon. Claudia J. Wilken . (Conrad, Mark) (Filed on 1/6/2012) (Entered: 01/06/2012)
205 MOTION for an emergency injunction to stay hearing pursuit to the non−compliance per Martinez settlement agreement filed by Mary Charles Robinson. Responses due by 2/13/2012. Replies due by 2/21/2012. (Attachments: # 1 Declaration)(cpS, COURT STAFF) (Filed on 1/30/2012) Modified on 2/1/2012 (cpS, COURT STAFF). (Entered: 02/01/2012)
206 Ex parte MOTION for Sanctions refusal to comply with a court order per Martinez settlement agreement filed by Mary Charles Robinson. Responses due by 2/13/2012. Replies due by 2/21/2012. (cpS, COURT STAFF) (Filed on 1/30/2012) Modified on 2/1/2012 (cpS, COURT STAFF). (Entered: 02/01/2012)
207 RESPONSE (re 206 MOTION for Sanctions, 205 MOTION for an emergency injunction to stay hearing pursuit to the non−compliance per Martinez settlement agreement ) filed byMichael J. Astrue. (Farel, Lily) (Filed on 2/13/2012) (Entered: 02/13/2012)
208 MOTION for Leave to File Brief Regarding Filings by Mary Charles Robinson filed by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on 2/21/2012) (Entered: 02/21/2012)
209 Declaration of Mark R. Conrad in Support of 208 MOTION for Leave to File Brief Regarding Filings by Mary Charles Robinson filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Related document(s) 208 ) (Conrad, Mark) (Filed on 2/21/2012) (Entered: 02/21/2012)
210 Proposed Order re 208 MOTION for Leave to File Brief Regarding Filings by Mary Charles Robinson by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 21 of 23

02/21/2012 02/27/2012 03/09/2012
03/09/2012 03/13/2012
03/16/2012 04/23/2012
04/23/2012 04/23/2012 04/26/2012 04/30/2012 05/01/2012 05/02/2012 11/01/2012

2/21/2012) (Entered: 02/21/2012)
211 Declaration of Mary Charles Robinson filed byMary Charles Robinson (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 2/21/2012) (Entered: 02/22/2012)
212 ORDER by Judge Claudia Wilken granting 208 Motion for Leave to File Brief Regarding Filings by Mary Charles Robinson. (ndr, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)
213 RESPONSE (re 206 MOTION for Sanctions, 205 MOTION for an emergency injunction to stay hearing pursuit to the non−compliance per Martinez settlement agreement ) filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on 3/9/2012) (Entered: 03/09/2012)
214 Declaration of Gerald A. McIntyre in Support of 213 Opposition/Response to Motion, filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Related document(s) 213 ) (Conrad, Mark) (Filed on 3/9/2012) (Entered: 03/09/2012)
215 ORDER DIRECTING PARTIES TO MEET AND CONFER AND SETTING FURTHER BRIEFING SCHEDULE FOR MOTIONS FILED BY MARY CHARLES ROBINSON. Set/Reset Deadlines as to 205 MOTION for an emergency injunction to stay hearing pursuit to the non−compliance per Martinez settlement agreement, 206 MOTION for Sanctions, Responses due by 4/23/2012. Replies due by 4/30/2012. Signed by Judge Claudia Wilken on 3/13/2012. (ndr, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)
216 NOTICE of Change of Address by Marilyn Lee Holle (Holle, Marilyn) (Filed on 3/16/2012) (Entered: 03/16/2012)
217 RESPONSE (re 206 MOTION for Sanctions, 205 MOTION for an emergency injunction to stay hearing pursuit to the non−compliance per Martinez settlement agreement ) FURTHER BRIEF OF CLASS COUNSEL filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Conrad, Mark) (Filed on 4/23/2012) (Entered: 04/23/2012)
218 Declaration of Gerald A. McIntyre in Support of 217 Opposition/Response to Motion, FURTHER BRIEF OF CLASS COUNSEL filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Related document(s) 217 ) (Conrad, Mark) (Filed on 4/23/2012) (Entered: 04/23/2012)
219 Declaration of Mary Charles Robinson in Support of 205 MOTION for an emergency injunction to stay hearing pursuit to the non−compliance per Martinez settlement agreement filed byMary Charles Robinson (Attachments: # 1 Envelope)(Related document(s) 205 ) (cp, COURT STAFF) (Filed on 4/23/2012) (Entered: 04/23/2012)
220 RESPONSE (re 206 MOTION for Sanctions, 205 MOTION for an emergency injunction to stay hearing pursuit to the non−compliance per Martinez settlement agreement ) Response to Class Counsel Further Briefing filed byMichael J. Astrue. (Farel, Lily) (Filed on 4/26/2012) (Entered: 04/26/2012)
221 ORDER by Judge Claudia Wilken DENYING 205 , 206 MOTIONS FILED BY MARY CHARLES ROBINSON WITHOUT PREJUDICE. (ndr, COURT STAFF) (Filed on 4/30/2012) (Entered: 04/30/2012)
222 CLERK'S CERTIFICATE OF SERVICE re 221 Order on Motions (cp, COURT STAFF) (Filed on 5/1/2012) (Entered: 05/01/2012)
223 Rebuttle to defendants' response to class counsel's brief filed byMary Charles Robinson (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 5/2/2012) (Entered: 05/03/2012)
224 Letter to Judge Claudia Wilken, dated 10/28/2012, from Russell G. Smart. (Attachments: # 1 Envelope)(kc, COURT STAFF) (Filed on 11/1/2012) (Entered: 11/02/2012)

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 22 of 23

12/07/2012 01/02/2013 01/25/2013
02/08/2013
02/21/2013 04/18/2013 04/18/2013 07/17/2013 07/26/2013 03/06/2014 03/10/2014

225 MOTION to Reopen Case to enforce judgment and order by Mary Charles Robinson. (Attachments: # 1 Declaration, # 2 Envelope)(cp, COURT STAFF) (Filed on 12/7/2012) Modified on 12/10/2012 (cp, COURT STAFF). (Entered: 12/07/2012)
226 Letter from Gerald McIntyre To Court Re: Letter from Russell G. Smart. (McIntyre, Gerald) (Filed on 1/2/2013) (Entered: 01/02/2013)
227 ORDER REQUESTING RESPONSE FROM CLASS COUNSEL ADDRESSING 225 MOTION BY CLASS MEMBER MARY CHARLES ROBINSON. Responses due by 2/8/2013. Signed by Judge Claudia Wilken on 1/25/2013. (ndr, COURT STAFF) (Filed on 1/25/2013) (Entered: 01/25/2013)
228 Declaration of Gerald A. McIntyre in RESPONSE to re 227 January 25, 2013 Order by Roberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph Sutrynowicz. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rich, Anna) (Filed on 2/8/2013) Modified on 2/11/2013 (cpS, COURT STAFF). (Entered: 02/08/2013)
229 Declaration of Mary Charles Robinson; Response to Gerald McIntyre response to the january 25, 2013 (kc, COURT STAFF) (Filed on 2/21/2013) Modified on 2/27/2013 (cpS, COURT STAFF). (Entered: 02/26/2013)
230 ORDER by Judge Claudia Wilken DENYING 225 MOTION FILED BY CLASS MEMBER MARY CHARLES ROBINSON. (ndr, COURT STAFF) (Filed on 4/18/2013) (Entered: 04/18/2013)
231 ORDER FINDING CASES RELATED (12−5668). Signed by Judge Claudia Wilken on 4/18/2013. (ndr, COURT STAFF) (Filed on 4/18/2013) (Entered: 04/18/2013)
232 Letter from CRD to Mr. Smart. (ndr, COURT STAFF) (Filed on 7/17/2013) (Entered: 07/17/2013)
233 Letter from CRD to Mr. Smart. (ndr, COURT STAFF) (Filed on 7/26/2013) (Entered: 07/26/2013)
234 Letter from CRD to Ms. Curtis. (ndr, COURT STAFF) (Filed on 3/6/2014) (Entered: 03/06/2014)
235

***DOCUMENT REMOVED PER ORDER 238 ***

03/18/2014
03/18/2014 03/18/2014 09/17/2014 10/01/2014

MOTION to Intervene and to Order the SSA to present discovery filed by Sylvia Curtis. Responses due by 3/24/2014. Replies due by 3/31/2014. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 3/10/2014) (kc, COURT STAFF). Modified on 3/19/2014 (cpS, COURT STAFF). (Entered: 03/11/2014)
236 ***DISREGARD, SEE DOCKET NO. 238 .*** ORDER REMOVING DOCUMENT NUMBER 235 FROM THE DOCKET. Signed by Judge Claudia Wilken on 3/18/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/18/2014) Modified on 3/18/2014 (ndr, COURT STAFF). (Entered: 03/18/2014)
237 Letter from CRD to Ms. Curtis. (ndr, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)
238 ORDER REMOVING DOCUMENT NUMBER 235 FROM THE DOCKET. Signed by Judge Claudia Wilken on 3/18/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/18/2014) (Entered: 03/18/2014)
239 MOTION to request the court to order contempt of court filed by Sylvia Curtis. Responses due by 10/1/2014. Replies due by 10/8/2014. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/17/2014) (Entered: 09/22/2014)
240 RESPONSE (re 239 MOTION to request the court to order contempt of court ) Class Counsel Response to Sept. 17, 2014 Motion Filed by Sylvia Curtis filed byRoberta Dobbs, Jimmy Howard, Rosa Martinez, Brent A. Roderick, Sharon D. Rozier, Joseph

Case: 4:08-cv-4735 As of: 11/18/2018 10:56 AM PST 23 of 23

10/22/2014 11/18/2014 12/04/2014 03/23/2015
03/23/2015 03/23/2015 04/01/2015 04/02/2015 04/09/2015 04/14/2015 04/20/2015 04/29/2015 06/22/2015 07/01/2015 02/01/2017 02/21/2017 02/27/2017 03/08/2017

Sutrynowicz. (Attachments: # 1 Declaration of Gerald McIntyre)(Rich, Anna) (Filed on 10/1/2014) (Entered: 10/01/2014)
241 ORDER by Judge Claudia Wilken DENYING 239 MOTION TO INTERVENE. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 10/22/2014) (Entered: 10/22/2014)
242 Letter from CRD to Ms. Conerly. (ndr, COURT STAFF) (Filed on 11/18/2014) (Entered: 11/18/2014)
243 Mail sent to Suaminka Conerly returned as undeliverable re 242 Letter. (cpS, COURT STAFF) (Filed on 12/4/2014) (Entered: 12/05/2014)
244 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Sylvia Curtis. Appeal of Order 241 (Appeal fee FEE NOT PAID.) (cpS, COURT STAFF) (Filed on 3/23/2015) (Additional attachment(s) added on 4/1/2015: # 1 Envelope) (cpS, COURT STAFF). (Entered: 04/01/2015)
245 Declaration of Sylvia Curtis in support of Motion to proceed in forma pauperis on appeal filed bySylvia Curtis. (cpS, COURT STAFF) (Filed on 3/23/2015) (Entered: 04/01/2015)
246 MOTION to Appoint Counsel on Appeal filed by Sylvia Curtis. (cpS, COURT STAFF) (Filed on 3/23/2015) (Entered: 04/01/2015)
247 Mailed request for payment of docket fee to appellant as to 244 Notice of Appeal (cc to USCA) (cpS, COURT STAFF) (Filed on 4/1/2015) (Entered: 04/01/2015)
248 USCA Case Number 15−15635 Ninth Circuit Court of Appeals for 244 Notice of Appeal, filed by Sylvia Curtis. (cjlS, COURT STAFF) (Filed on 4/2/2015) (Entered: 04/02/2015)
249 Order by Hon. Claudia Wilken denying 246 Motion to Appoint Counsel. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/9/2015) (Entered: 04/09/2015)
250 ORDER of USCA: appeal is dismissed for lack of jurisdiction as to 244 Notice of Appeal, filed by Sylvia Curtis (cpS, COURT STAFF) (Filed on 4/14/2015) (Entered: 04/15/2015)
251 MOTION for Leave to Appeal in forma pauperis filed by Sylvia Curtis. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 4/20/2015) (Entered: 04/20/2015)
252 ORDER by Judge Claudia Wilken denying 251 Motion for Leave to Appeal in forma pauperis. (Attachments: # 1 Certificate/Proof of Service) (mklS, COURT STAFF) (Filed on 4/29/2015) (Entered: 04/29/2015)
253 ORDER of USCA: DENYING Appellant's motion for reconsideration as to 244 Notice of Appeal, filed by Sylvia Curtis (cpS, COURT STAFF) (Filed on 6/22/2015) (Entered: 06/23/2015)
254 MANDATE of USCA as to 244 Notice of Appeal, filed by Sylvia Curtis. (cjlS, COURT STAFF) (Filed on 7/1/2015) (Entered: 07/02/2015)
255 Jurisdiction−Stipulation of Settlement, Article filed by Stephen Ullrich (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 2/1/2017) (Entered: 02/07/2017)
256 Letter from Stephen Ullrich re additional attachment to document previously sent. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 2/21/2017) (Entered: 02/24/2017)
257 Letter from Stephen Ullrich. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 2/27/2017) (Entered: 03/01/2017)
258 Letter from CRD in response to Letters from Stephen Ullrich 255 , 256 , 257 . (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 3/8/2017) (Entered: 03/08/2017)

 
 NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND FAIRNESS HEARING REGARDING SOCIAL SECURITY’S POLICY ON “FLEEING
FELONS” AND OUTSTANDING ARREST WARRANTS
This notice contains important information if your Social Security retirement, survivors, or disability insurance benefits, Special Veterans Benefits (SVB), or Supplemental Security Income (SSI) payments have been suspended or denied, or if you have not been permitted to serve as a representative payee to beneficiaries of those programs on the ground that you were “fleeing to avoid prosecution or custody or confinement after a conviction” for a felony.
A court has preliminarily approved a settlement of a class action lawsuit on this issue. The case, called Martinez v. Astrue, is pending in federal district court in Oakland, California.
The Court has set a fairness hearing to consider a proposed settlement of the claims that have been brought on your behalf in this lawsuit. The hearing is scheduled to be held on September 24, 2009 at 2:00 p.m. at the following address:
Honorable Claudia Wilken Courtroom 2 United States District Court of Northern California 1301 Clay St. Oakland, CA 94612
Because the date and time of that hearing may change, please check with the Court prior to attending the hearing.
The settlement in this case does not concern people whose benefits may have been suspended or denied because of a warrant based on a violation of probation or parole.
This class action settlement could affect your rights. Please read below for more information, or call the National Senior Citizens Law Center 510-663-1055 ext. 301.
This notice has three purposes: 1) to tell you about the proposed settlement and the fairness hearing; 2) to tell you how to obtain more information, including a copy of the full proposed settlement agreement; and 3) to explain how you may object to the proposed settlement if you disagree with it.
What is this Lawsuit About?
Plaintiffs claimed that the Social Security Administration (SSA) should not suspend or deny SSI, SVB, or Social Security benefits or payments, or refuse to allow people to serve as representative payees, solely on the basis of an outstanding felony arrest warrant. The parties have reached a tentative settlement that the Court has preliminarily approved. The sections below explain some of the key provisions of the tentative settlement.
Who is in the Settlement Class?
You may be a Settlement Class Member if your SSI, SVB, or Old Age, Survivors, and Disability Insurance (OASDI) benefits have been suspended or denied, or you are threatened with the suspension or denial of these benefits, based on an outstanding felony
- 1 -

arrest warrant. If you were not permitted to serve as a representative payee for this same reason, you may also be in the Settlement Class.
The Settlement Class does not include people who have already received a final federal court decision in an individual action regarding SSA’s fugitive felon policy.
What are the Terms of the Proposed Settlement?
THIS IS A SUMMARY OF THE PROPOSED AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. The following description summarizes the key points in the proposed settlement agreement. You can read the entire proposed settlement agreement at SSA’s website, at www.socialsecurity.gov/martinezsettlement and on the website of the National Senior Citizens Law Center at http://www.nsclc.org/areas/social-security-ssi/MartinezSettlement/Court-Documents.
April 1, 2009 Change in SSA Policy. Effective April 1, 2009, SSA changed its policy. SSA will suspend or deny benefits based on outstanding felony arrest warrants for only the crimes of flight to avoid prosecution or confinement, escape from custody, and flightescape. SSA will also apply the new policy when it considers a person’s request to serve as a representative payee. SSA may still use warrant information when it decides whether or not a person is suitable to serve as a representative payee.
Benefits for “Post-2006” Settlement Class Members. For Settlement Class Members whose benefits were suspended or denied or had an administrative appeal determination on or after January 1, 2007, or who had administrative claims challenging the suspension of their benefits pending on August 11, 2008, SSA will reinstate benefits and pay benefits that it withheld back to the first month of the Class Member’s suspension. SSA will also repay any sums that it collected because it found that the Class Member had been overpaid benefits under the previous policy. SSA will also reinstate benefits for Class Members who get SSI, but it will also redetermine the Class Member’s non-medical eligibility criteria under its usual policies. After it reinstates benefits or payments to Settlement Class Members, SSA may do continuing disability reviews under its usual policies. SSA will notify Post-2006 Settlement Class Members at the time it takes these actions with individual notices mailed to the address on SSA records.
Benefits for “Pre-2007” Settlement Class Members. For Settlement Class Members whose benefits were suspended or denied between January 1, 2000 and December 31, 2006, and who did not have live administrative claims on August 11, 2008, SSA will stop collecting overpayments and will remove any remaining overpayment balance based on the previous policy. SSA will notify Pre-2007 Settlement Class Members of the settlement by a mailing to the address in SSA’s records. For Class Members who were not receiving benefits as of April 1, 2009, the notice will advise that they may file a new application for benefits. If they do so within six months from the date of their notices, SSA will use an application date of April 1, 2009 as the protective filing date in reviewing the claim.
Class Members whose benefits were suspended or denied prior to January 1, 2000 may reapply under the new policy, but will not receive a mailed notice or a protective filing date.
Release of Claims. Class Members will agree to release all claims relating to the subject matter of this case that could have been asserted in the Martinez complaint against SSA.
- 2 -

When Will Relief Be Provided?
The Court must first finally approve the settlement. After final approval, SSA will begin steps to fulfill the terms of the settlement. Due to the size and complexity of the settlement, SSA requires some time to complete the terms. Currently, SSA plans to provide relief in phases, which are expected to conclude at the end of 2010. This timeframe is subject to change.
Do not contact SSA about reinstatement of benefits or overpayment relief provided by this settlement. SSA will notify individuals affected by the settlement after final court approval.

What if I Object to or Have Questions About The Proposed Settlement?

IF YOU AGREE with the proposed settlement, you do not need to do anything at this time. If you wish to attend, you may be present at the public hearing on the proposed settlement as stated above.

IF YOU DISAGREE with the proposed settlement, you have a right to object to it. Your objections will be considered by the Court as it reviews the settlement ONLY IF you follow these procedures. You must submit objections in writing to the Court at the address above. Your objections must be received by September 10, 2009.
ALL OBJECTIONS MUST CONTAIN THE FOLLOWING INFORMATION:

a) Name, address, and telephone number of the person filing the objection. b) A statement of the reasons for the objection. c) A statement that copies of the objections have also been sent to the
attorneys listed at the end of this notice.

Because this is a mandatory class under Federal Rule of Civil Procedure 23(b)(2), individual Settlement Class Members cannot exclude themselves from the Settlement Class.
If you have any questions about the lawsuit or the tentative settlement, please call the National Senior Citizens Law Center 510-663-1055 ext. 301.

Attorneys’ Names and Addresses for Plaintiffs and Defendant

For the Plaintiffs:

For the Defendant:

Gerald A. McIntyre

Victoria R. Carradero

National Senior Citizens Law Center

Assistant United States Attorney

3435 Wilshire Boulevard, Suite 2860

450 Golden Gate Avenue, 9th Floor

Los Angeles, CA 90010-1938

San Francisco, CA 94102-3495

Telephone: (213) 674-2900

Telephone:

(415) 436-7000

Fax: (213) 639-0934

Fax: (415) 436-6748

- 3 -