TN 5 (07-07)

Citations:

Social Security Act, Section 1611(e)(4); 20 CFR 416.202, 416.1339, and 416.1485; Acquiescence Ruling 06-1(2)

A. Background

1. Court Decision

On 12/06/05, the United States Court of Appeals for the Second Circuit, in Fowlkes v. Adamec, ruled against the Social Security Administration (SSA) concerning its policy for determining whether an individual is a fugitive felon.

The Circuit Court invalidated SSA's policy of using an outstanding felony arrest warrant or similar order as the sole basis for finding that an individual is a fugitive felon. The court held that SSA also must have evidence that the individual knows that his apprehension is sought, and the warrant must have been issued on the basis that the individual has fled or is fleeing from justice.

To apply the Second Circuit's order, SSA is no longer denying eligibility to receive payments for claimants who reside in the Second Circuit (Connecticut, New York, or Vermont) based only on an outstanding felony arrest warrant or similar order.

The Fowlkes decision does not apply to cases where the outstanding warrant is for violating a condition of parole or probation.

2. Acquiescence Ruling (AR)

To comply with the Circuit Court's decision, SSA prepared Acquiescence Ruling AR 06-01(2) (Fowlkes AR) to explain how SSA will determine fugitive felon status in the Second Circuit under the Fowlkes decision. This section provides instructions for processing SSI cases for individuals residing within the Second Circuit (Connecticut (CT), New York (NY), Vermont (VT)) and who may be affected by the Fowlkes AR.

While the Second Circuit's decision focused on the Title XVI fugitive felon provisions, the Fowlkes AR extends the court's decision to Title II. Instructions for processing title II cases that may be affected by the Fowlkes AR are in GN 02613.800 - GN 02613.856.

B. Policy

1. Treatment of Felony Warrants

For residents of CT, NY, or VT, do not deny or suspend eligibility to receive payment based solely on an outstanding felony arrest warrant or similar order. This policy applies to determinations and decisions at all administrative levels (initial, reconsideration, Administrative Law Judge (ALJ) hearing, or Appeals Council review.)

The Fowlkes AR does not change the policy on either mandatory or discretionary good cause determinations. The good cause exception explained in SI 00530.015 permits payment of benefits despite a determination that the individual is or was a fugitive felon at some point in time. A determination that good cause exists for not satisfying a warrant is separate and distinct from the basic determination that the individual is a fugitive felon.

Also, the Fowlkes AR and the instructions in this section do not apply to cases where the outstanding warrant is for a parole or probation violation. For parole or probation violators who are residents of Connecticut, New York, or Vermont, apply the national instructions (SI 00530.001 through SI 00530.990).

2. Effective Date

In the Fowlkes AR issued on 04/06/06, SSA stated it would apply the Circuit Court's decision dated 12/06/05. This means SSA will apply the Second Circuit holding instead of SSA's nationwide policy to fugitive felon determinations and decisions made on or after 12/06/05 for residents of Connecticut, New York, or Vermont.

3. Movement Out of the Second Circuit

When a person establishes residence outside of the Second Circuit after receiving the benefit of the Fowlkes AR, the AR no longer applies to that person. If the person still has an unsatisfied felony arrest warrant, and SSA has not found good cause for failure to satisfy the warrant, we will suspend benefits effective with the month in which the person moved out of the Second Circuit.

4. Movement into the Second Circuit

Moving into the Second Circuit has no effect on fugitive felon determinations made while the individual did not reside within the Second Circuit and for which the appeal period has expired. If the appeal period has not expired (or has been extended), the Fowlkes AR will apply to a request for appeal. If the person files a new SSI application while residing in the Second Circuit, the Fowlkes ruling will apply from the date the application is filed.

5. Disclosure to Law Enforcement

Because the Social Security Act provision concerning disclosures to law enforcement about fugitive felon SSI recipients is based on language interpreted by the Fowlkes decision, SSA may no longer routinely disclose information to law enforcement about Second Circuit residents with outstanding felony arrest warrants. However, on a completely separate basis, SSA can still disclose certain information for law enforcement purposes about individuals who have been indicted or convicted of violent crimes. This exception, which is strictly applied, is described in GN 03312.005.

6. Readjudication Under the Fowlkes AR

Fugitive felon determinations or decisions made for Second Circuit residents on or after 12/06/05 may be subject to readjudication if the Fowlkes ruling was not previously applied to the case. Readjudication may apply to pending claims (cases awaiting adjudication on appeal or adjudicated cases in which the appeal period has not expired) and may apply to cases in which a timely appeal has not been pursued.

a. Readjudication Must be Requested

The claimant must request readjudication under the Fowlkes AR. The claimant may do this either on his or her own initiative, or in response to the Fowlkes AR notice sent by Central Office to individuals who may be affected by the AR. This notice (SI 00530.800H.1.) is sent to individuals who were identified by field offices or through systems selections. The normal time limits for reopening and administrative finality do not apply to a request for readjudication under the AR.

Readjudication is limited to consideration of the specific issue covered by the Fowlkes AR: whether the person can be considered a fugitive felon within the Second Circuit.

b. Criteria for Relief Upon Readjudication

• Basic Requirements for Relief

Readjudicate a previous fugitive felon denial/suspension initial determination or the administrative review decision (reconsideration, ALJ hearing, or Appeals Council review) and reinstate payments if:

• The individual resided in Connecticut, New York, or Vermont at the time the denial/suspension/administrative review decision was made (i.e., the date of the notice); and

• The notice of the fugitive felon denial/suspension/administrative review decision was dated 12/06/05 or later.

• Fully Favorable Relief

If the person resided within the Second Circuit during the entire relevant period, we will grant fully favorable relief and, if all other eligibility requirements are met, will resume benefits retroactive to the month the fugitive felon suspension was first applied to the record. We will initiate full development of previously denied claims, and we will allow them effective with the month of the denial if all other eligibility requirements are met.

NOTE: Individuals who file a timely appeal after moving into the Second Circuit may (if all other eligibility requirements are met) receive fully favorable relief, even though they lived outside of the Second Circuit when the prior fugitive felon determination or decision was made.

• Partially Favorable Relief

If the person has moved out of the Second Circuit since 12/06/05, we will grant partially favorable relief and, if all other eligibility requirements are met, we will resume or allow benefits through the month prior to the month residence outside of the Second Circuit began.

c. Denial of a Request for Readjudication

We will deny a request for readjudication when we determine that application of the Fowlkes AR could not change the prior determination or decision. The claimant does not have appeal rights with respect to the denial of a request for readjudication. See GN 03501.015C.2.

C. Process

Generally, Federal, State, and local law enforcement agencies provide SSA with warrant information from their records to match against the SSR. The Office of the Inspector General (OIG) is screening felony warrant cases out of the computer matching operation if the individual resides in CT, NY, or VT. These cases are not being forwarded to the Fugitive Felon Automated Processing (FFAP) system. See SI 00530.205.

Generally, fugitive felon data is matched against the Representative Payee System (RPS) to detect those persons with an unsatisfied felony warrant who are actively serving as a representative payee or who have a pending representative payee application. The RPS/fugitive felon match alerts are not being generated for residents of CT, NY, or VT. (See SI 00530.800D.3. for cases where a representative payee or payee applicant living in one of these States; self-reports an outstanding felony arrest warrant.)

D. Procedure

1. Determining the State of Residence

Determine whether the individual resided in CT, NY, or VT on or after 12/06/05. See SI 01410.010 - SI 01410.050 for instructions on determining the State of residence.

2. Processing Initial Claims

For initial claims filed 12/06/05 or later:

• Do not deny or suspend benefits based solely on evidence of an outstanding felony arrest warrant.

• If the claimant states that he or she has an outstanding felony arrest warrant, accept the claimant's allegations. Do not develop the warrant information unless the claimant is also filing, or has been selected, to be a representative payee (see GN 00502.133).

• See SI 00530.805 for instructions on completing the MSSICS screens, and for documenting the Fugitive Felon Automated Processing system (FFAP) and the Fugitive Felon SSA Control File (FFSCF).

• Enter "Fowlkes Court Case" in Remarks on the DW01 screen and on the SSR Remarks (CRMK) screen.

• Prepare a manual award notice that includes language that explains the Fowlkes AR.

3. Post-eligibility Cases

For post-eligibility reports of an unsatisfied felony arrest warrant:

• For first or third party reports, take no action for benefit payment purposes. Post remarks to the SSR that an outstanding felony warrant was reported but no development is required.

• For first party reports, take action for representative payee purposes. Query RPS to determine if the person is serving as a representative payee. We will not select self-reporting individuals to serve as representative payees and we will disqualify them from continuing to serve as representative payees (see GN 00504.102). For third party reports, confirm fugitive felon status before disqualifying a representative payee or payee applicant.

4. Handling Requests for Readjudication

a. Claimant Requests a New Determination

If a claimant requests a new determination or decision based on application of the Fowlkes AR:

• Obtain a statement from the claimant that mentions the Fowlkes AR or the circuit court decision and explains how either could change the prior fugitive felon determination or decision. See GN 02613.830F. for an example of a statement that contains all of the information likely to be needed from a person to determine if relief under the Fowlkes AR may be granted.

• Check the living arrangement screens in MSSICS to confirm that the person was residing in CT, NY, or VT when SSA made the prior determination or decision on fugitive felon status (i.e., the date of the notice). For non-MSSICS cases, review the State and county code in the SSR CMPH for the applicable time period. If the person alleges residing at a different address than what is shown on the Residence Address (LRES) screen or SSR CMPH for the period in question, develop evidence about residence for that period per SI 01410.010 through SI 01410.050.

• Use the OI-5D warrant information on FFAP or FFSCF to confirm that the warrant is for a felony offense (as opposed to a probation or parole violation).

• Determine where the case was last adjudicated (FO level, PSC, or OHA), if no current claim or appeal is pending.

• Decide whether to grant the request, if a FO was the point of last adjudication. Cases automatically suspended by FFAP are considered to have been adjudicated at the FO level. If a FO was not the point of last adjudication, see SI 00530.800D.4.e. and SI 00530.800D.4.f.

b. Allow a Request for Readjudication

Allow a request for readjudication if all of the following conditions are met:

• The claimant was a resident of CT, NY, or VT when the prior fugitive felon determination was made; and

• The suspension, denial, or reconsideration notice was dated 12/06/05 or later; and

• The suspension or denial was based solely on the existence of an outstanding felony warrant; and

• The Fowlkes AR was not previously applied to the case.

c. Fully Favorable Readjudication

If we are granting fully favorable relief to a person who has resided within the Second Circuit for the entire relevant period:

• Fully develop and adjudicate the claim for the entire period covered by the previous determination up through the present (e.g., reinstate effective with the first month of N25 and continuing).

• Reopen and revise the prior determination (suspension, denial, or reconsideration) without regard to the normal time limits for reopening and administrative finality.

• Follow the procedures in SI 02301.205 and SI 02301.210 to reestablish eligibility after a suspension or termination, but do not conduct a redetermination.

• See SI 00530.805 for instructions on systems inputs.

• If the favorable determination results from a response to the one-time Fowlkes AR notice, code CATS per GN 02613.830C.4.

• Prepare a manual notice explaining that the request for readjudication has been allowed. Language for the Fowlkes Reinstatement Notice (T2/T16) is available on DOCS (Distributed Online Correspondence System) under General.

d. Partially Favorable Readjudication

If we are granting partially favorable relief to a person who:

• moved out of the Second Circuit since 12/06/05, and

• has a felony warrant that has not been satisfied, and

• good cause has not been established for failure to satisfy the warrant, then

Follow the instructions for granting favorable relief, but suspend benefits effective with the month the person moved out of the Second Circuit.

e. Case Last Adjudicated at Location Other Than a FO—No Subsequent Application or Appeal is Pending

If the case was last adjudicated at a location other than a FO and no subsequent application or appeal is pending:

• Complete the transmittal flag (see exhibit in SI 00530.800G.).

• Forward the folder to the location/component where the claim was last adjudicated. The adjudicator at the location where the folder is forwarded will then grant the request for readjudication if application of the Fowlkes AR could change the determination or decision.

f. Case Last Adjudicated at Location Other Than a FO—Subsequent Application or Appeal is Pending

If the case was last adjudicated at a location other than a FO and a subsequent application or appeal is pending:

Send the prior folder and new material to the office where the claim is pending.

g. Request for Readjudication is Denied

If the request for readjudication is denied, prepare a manual notice (with no appeal rights) explaining that the request is being denied. Language for the Fowlkes Readjudication Denial Notice (T2/T16) is available on DOCS under General.

If the unfavorable determination results from a response to the one-time Fowlkes AR notice, code CATS per GN 02613.830C.4.

h. Fowlkes AR Notice is Returned as Undeliverable

If the one-time Fowlkes AR notice (SI 00530.800H.) is returned to the FO as undeliverable, check the SSR for a new address:

• If there is a new address on the SSR, remail the notice, as is, to the new address (GN 02605.060C.3.b.)

• If the address on the SSR is the same as on the notice, follow the instructions in SI 02301.240C.

• Follow the instructions in GN 02613.830C.4. for CATS coding.

E. References

GN 03501.001, Acquiescence Rulings (AR) Background and General Policy

GN 03501.015, Readjudication Using Acquiescence Rulings

GN 03501.017, Beneficiary Moves Out of Circuit After Receiving Benefit of AR

GN 03501.019, Claimant/Recipient Moves Into Circuit With Applicable AR

F. Examples

1. Example - The Fowlkes AR applies to a previous determination on fugitive felon status

a. Fully Favorable Relief on Reconsideration

John lives in Vermont. His SSI benefits were suspended effective May 2005, because of an unsatisfied felony warrant. His suspension notice was dated 10/04/05. He filed a timely request for reconsideration, which was denied on 12/20/05. He did not appeal the reconsideration determination. On 09/06/06, he requested that the Fowlkes AR be applied to his claim. John meets the requirements for Fowlkes relief upon readjudication because he was living in a Second Circuit State when his request for reconsideration was denied, and the reconsideration notice is dated after 12/06/05 (the date of court decision). His benefits may be reinstated retroactive to May 2005, the first month of N25.

b. Fully Favorable Readjudication

Jane lives in New York. She filed for SSI benefits on 11/22/05. Her claim was denied because of an unsatisfied felony warrant. Her denial notice was dated 01/04/06. She did not appeal the denial. On 05/17/06, she requested that the Fowlkes AR be applied to her claim. Jane meets the requirements for Fowlkes relief upon readjudication because she was living in a Second Circuit State when her SSI claim was denied, the denial notice is dated after 12/06/05 (the date of the court decision), and she is living in the Second Circuit when her claim is readjudicated. Her claim is developed for all factors of eligibility.

2. Example - The Fowlkes AR does not apply to a previous determination on fugitive felon status that became final before 12/06/05

Mary lives in New York. Her claim for SSI benefits was denied because of an unsatisfied felony warrant. Her denial notice was dated 08/23/05. She did not appeal the denial. On 10/04/06, she requested mandatory good cause for not satisfying the felony warrant. Her request for good cause was denied on 05/25/06. The Fowlkes AR does not apply to Mary's claim, because no determination or decision was made on the issue of fugitive status on or after 12/06/05. A determination on the good cause exception is separate from the determination that a person is or was a fugitive felon.

Although the Fowlkes AR does not apply to the previous determination, if Mary files a new application while residing in the Second Circuit, the AR would apply to the new determination on fugitive felon status.

3. Example - The Recipient Moves Out of the Second Circuit—Partially Favorable Relief

Tom was living in New York when his SSI benefits were suspended effective August 2005, because of an unsatisfied felony warrant. His suspension notice was dated 01/20/06. He did not appeal the suspension. On 04/18/06, he requested readjudication of his claim under the Fowlkes AR. Tom met the requirements for Fowlkes relief upon readjudication because he was living in a Second Circuit State when his SSI benefits were suspended, the suspension notice was dated after 12/06/05 (the date of court decision), and he was still living in the Second Circuit when his case was readjudicated. His benefits were reinstated retroactive to August 2005, the first month of N25.

On 06/24/06, Tom moved to Florida. The Fowlkes AR no longer applies to him because he no longer resides in the Second Circuit. He still has an unsatisfied felony warrant, and he cannot establish good cause for not satisfying the warrant. His benefits are suspended effective June 2006, the month in which he moved out of the Second Circuit.

G. Exhibit - Fowlkes Transmittal Flag

Transmittal Flag

READJUDICATION REQUEST

Fowlkes Acquiescence Ruling

AR 06-1(2)

TO:     PSC/ODAR address and routing code

FROM:    FO address and routing code

LEVEL OF LAST DETERMINATION (CHECK ONE BLOCK):

[ ] INITIAL [ ]  RECONSIDERATION [ ] OHA LEVEL

CLAIM NUMBER:

NAME:

H. Exhibit - TXVI Fowlkes AR Notice

Social Security Administration

Important Information                                                                            

                                                                            OFFICE ADDRESS:

                                                                               PHONE: (XXX) XXX-XXXX

JOHN G. BENEFICIARY           DOC: XXX                DATE: July 23, 2007

101 MAIN STREET    FW                           SOCIAL SECURITY NUMBER:

ANYTOWN, CT                       00001-0000               XXXXXXXXX

                                                                               KEY CODE: XXXXXXXX

                                                                               CLAIM NUMBER(S):

                                                                               XXXXXXXXXDI

IMPORTANT - READ CAREFULLY

We may be able to pay you Supplemental Security Income (SSI) because of a recent court decision. The decision was made by the United States Court of Appeals for the Second Circuit in a case called Fowlkes v. Adamec.

The law does not allow us to pay SSI to persons who are fleeing to avoid prosecution, custody, or a jail term for a felony.

In the Fowlkes v. Adamec case, the court found that the Social Security Administration cannot stop SSI payments just because someone has an outstanding arrest warrant for a felony. The court found that the person must also know that he or she is wanted by law enforcement, the person is evading arrest, and the warrant was issued because the person was fleeing from justice.

We issued the Fowlkes v. Adamec acquiescence ruling (AR) to explain how we will decide other cases in the States of Connecticut, New York, and Vermont for persons who have outstanding felony arrest warrants. Based on this AR, beginning December 6, 2005, we will not stop the payments of these persons unless the person knows there is an outstanding felony warrant for his or her arrest, he or she does not resolve the warrant, and the warrant was issued because he or she is fleeing from justice.

This ruling does not apply to persons whose payments were stopped for a parole or probation violation.

You Must Ask Us To Review Our Earlier Decision

You must contact your local Social Security office and request a review of your case if you would like us to make a new decision about your SSI payments.

If you contact Social Security, you need to provide us with the name of the court case, Fowlkes v. Adamec, or the name of the AR, which is the Fowlkes v. Adamec AR. We may also ask you for other information to help us decide whether applying this ruling to your case could change our prior decision.

When We Will Make A New Decision About Your Payments

We will make a new decision about the payment of your SSI only if you request a review and we then determine that the Fowlkes v. Adamec AR could change our prior decision.

Legal Representation

If you have an attorney or someone else helping you with your case, you should contact him or her. You should also give him or her a copy of this notice.

If You Have Any Questions

For general information about SSI, visit our website at www.socialsecurity.gov on the Internet. There, you will also find the law and regulations about SSI eligibility and SSI payment amounts.

For specific questions about your case, you may contact your local Social Security office. The address and telephone number are printed at the top of this letter.

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

SI USTED HABLA ESPANOL

Si usted habla español y no entiende esta carta, por favor llame o visite su oficina local de Seguro Social. Un representante de la oficina de Seguro Social le explicará esta carta. Debe informarle que usted está respondiendo al aviso, Fowlkes v. Adamec.