SSA Issues Acquiescence Ruling in Fowlkes Case

The Social Security Administration decided not to appeal the Second Circuit decision in Fowlkes v. Adamec, 432 F.3d 90 (2nd Cir. 2005) and has issued an Acquiescence Ruling. Social Security Acquiescence Ruling 06-1(2), 71 Fed. Reg. 17551 (Apr. 6, 2006).

The Social Security Administration decided not to appeal the Second Circuit decision in Fowlkes v. Adamec, 432 F.3d 90 (2^nd Cir. 2005) and has issued an Acquiescence Ruling. Social Security Acquiescence Ruling 06-1(2), 71 Fed. Reg. 17551 (Apr. 6, 2006). In addition, the Congressional Research Service (CRS) has issued a report on SSA’s response to the Fowlkes decision.

The Fowlkes court ruled that the Social Security Administration (SSA) cannot suspend a Supplemental Security Income (SSI) recipient’s benefits, on grounds that the recipient is fleeing to avoid prosecution for a felony, simply on the basis of an arrest warrant alone. The court held that the plain language of the statute required that there be a finding of intent and that the agency’s own regulations prohibited suspending benefits until there was a warrant or order issued by a court or other appropriate tribunal based on a finding that the individual was fleeing to avoid prosecution. 42 U.S.C. § 1382(e)(4)(A); 20 CFR § 416.1339(b).

The CRS report, "Social Security Administration: Suspension of Benefits for Fugitive Felons and the Agency’s Response to the Fowlkes Decision." (April 27, 2006), briefly outlines the legislative and regulatory history and describes the Fowlkes opinion and the Acquiescence Ruling. The Ruling applies to Social Security Title II benefits as well as SSI and went into effect on April 6, 2006 in the Second Circuit states of New York, Connecticut and Vermont but allows application retroactive to December 6, 2005, the date of the Fowlkes decision, if a person can show that the ruling would have changed the outcome of his or her case. SSA has indicated it will not follow the Fowlkes decision in the rest of the country where it will continue to suspend benefits on the basis of a warrant alone.

In addition, it should be noted that within the Second Circuit, the Acquiescence Ruling applies only to determinations that a person is fleeing to avoid prosecution or is fleeing to avoid custody or confinement. It does not apply to benefit suspensions or denials based on a determination that an individual is "violating a condition of probation or parole."

Practice Tip

- Although the Acquiescence Ruling states it is retroactive only to December 6, 2006, advocates must remember that, given the nature of the affected population, many people who have lost their benefits may have a basis for reopening earlier determinations under SSA’s general good cause regulations. 20 CFR §§ 404.911 & 416.1411. Advocates might want to make special efforts to notify service providers, especially homeless service agencies and mental health providers, in their communities about the possibility of reopening these earlier cases.

Post Fowlkes Litigation

is a distinct possibility to deal with two issues not covered in the Acquiescence Ruling. First is the failure of the Ruling to cover suspensions based on "violating a condition of probation or parole." While probation and parole violation cases would not be subject to the Second Circuit’s holding with respect to the statutory requirement of intent, they would fall squarely within the court’s holding with respect to the agency’s failure to follow 20 CFR § 416.1339(b). This requires that the suspension not go into effect until after there is a warrant or order "issued by a court or other appropriate tribunal on the basis of an appropriate finding that the individual ... is violating, or has violated, a condition of his or her probation or parole." Advocates in the Second Circuit should argue that these people are also entitled to relief under Fowlkes.

Litigation might also be possible to reopen almost all cases going back to the beginning of 2005 when SSA adopted a policy of sending out notices that deliberately misstate the law by stating that "the law prohibits us from paying SSI to individuals who have an outstanding arrest warrant for a crime which is a felony," thereby leading people to believe there was no basis for appeal. Earlier notices had tracked the statutory language. The notice language was changed shortly after lower courts issued rulings against the agency based, as in Fowlkes, on the plain meaning of the statutory language.