Plaintiffs have moved for certification of a nationwide class in Clark v. Astrue, (06-cv-15521 SHS, SDNY). the action challenging the Social Security Administration’s (SSA) policy of suspending or denying Social Security and Supplemental Security Income (SSI) benefits anytime someone had an outstanding arrest warrant for an alleged violation of probation or parole. This action follows a remand from the U.S. Court of Appeals for the Second Circuit which reversed an award of summary judgment to the government. Clark v. Astrue, 602 F.3d 140 (2nd Cir. 2010). The Second Circuit found SSA’s policy to be inconsistent with the plain meaning of the statutory language which only authorizes suspension or denial of benefits when the person is actually “violating a condition of probation or parole.” The court has approved a briefing schedule which runs through the beginning of October. Thus a decision is not likely until well into the fall.
Practice tip - Appeal! Appeal! Pending conclusion of the Clark litigation, it is important an appeal be filed in every case in which SSA suspends or denies benefits on the basis of an arrest warrant alleging violation of a condition of probation or parole. The basis for appeal is the same in virtually all cases — neither SSA nor anyone else has made a determination that the individual is actually violating a condition of probation or parole. At best, all that has been determined is that a warrant has been issued to bring the person in for a determination of whether or not the person is violating a condition of probation or parole. Plaintiffs are represented by the National Senior Citizens Law Center, Urban Justice Center Mental Health Project and the law firm of Proskauer Rose, LLP. For further information, please contact Gerald McIntyre in the NSCLC Los Angeles office.