Attachment 1. Attachment
1. Order Approved by the U.S. District Court for the Southern District
of New York on April 13, 2012
UNITED STATES DISTRICT COURT
SOUTHERN
DISTRICT OF NEW YORK
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RYAN CLARK, JOY JORDAN, RAYMOND
GIANGRASSO,
TONY GONZALES, JOHNNY
L. HEATHERMAN, and MONELL WHITE,
individually
on behalf of themselves, and on
behalf of all those similarly
situated
Plaintiffs,
MICHAEL J. ASTRUE,
Commissioner of the
Social Security Administration, in his official
capacity,
Defendant.
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06 Civ. 15521 (SHS)
ORDER
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In an opinion dated March 19, 2010, the U.S. Court of Appeals
for the Second Circuit held that the "the Social Security Administration's
practice of treating a warrant alleging that a recipient is violating
a condition of probation or parole as sufficient and irrebuttable
evidence that the recipient is in fact violating a condition of
probation or parole is inconsistent with the plain meaning of the
Social Security Act." Clark v. Astrue, 602 F.3d 140 (2d Cir. 2010).
This Court subsequently certified a class defined as "All persons
nationwide for whom an initial determination to suspend or deny
SSI and/or OASDI benefits was made and/or an initial
determination of overpayment of such benefits was made and such
initial determination was based solely on the existence of a warrant
for an alleged violation of probation or parole, provided: (i) the
initial determination was made during the period from October 24,
2006 to and including such time in the future when final relief
is entered in this action; or (ii) a timely administrative appeal
of such initial determination was pending on or after October 24,
2006."
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED as
follows:
SECTION 1 DEFINITIONS
1.1 "Action" means the litigation in the United States District
Court for the Southern District of New York, 06 Civ. 15521 (SHS),
and the U.S. Court of Appeals for the Second Circuit, 08-580 l-ev,
and all proceedings had therein.
1.2 "Class Counsel" or "Plaintiffs' Counsel" means:
Proskauer Rose LLP, the National Senior Citizens Law Center and
the Urban Justice Center.
1.3 The "Class" or "Class Members" means: a Plaintiff class,
pursuant to Fed. R. Civ. P. 23(b)(2), comprising: "All persons nationwide
for whom an initial determination to suspend or deny SSI and/or
OASDI benefits was made and/or an initial determination
of overpayment of such benefits was made and such initial determination
was based solely on the existence of a warrant for an alleged violation
of probation or parole, provided: (i) the initial determination
was made during the period from October 24, 2006 to and including
such time in the future when final relief is entered in this action;
or (ii) a timely administrative appeal of such initial determination
was pending on or after October 24, 2006." 1.4 "Court" means the
United States District Court for the Southern District of New York.
1.5 "Defendant" or "the Commissioner" means Michael J. Astrue,
the Commissioner of Social Security, in his official capacity, and/or
his successors, if any.
1.6 "Named Plaintiffs" refers to Plaintiffs Raymond Giangrasso,
Johnny L. Heatherman, Monell White, Ryan Clark and Joy Jordan.
1.7 "OASDI" means the Old Age, Survivors, and Disability Insurance
program, under Title II of the Social Security Act. 1.8 "Overpayment"
shall have the meaning as set forth in 20 C.F.R. §§ 404.501,
404.502 and 416.537(a).
1.9 "Parties" means the Named Plaintiffs, the Class and Defendant.
1.10 "Plaintiffs" refers to the Named Plaintiffs, acting on
their own behalf and on behalf of all Class Members. 1.11 "SSA"
means the Social Security Administration.
1.12 "SSI" means the Supplemental Security Income program
under Title XVI of the Social Security Act.
SECTION 2 PROSPECTIVE RELIEF
2.1 Defendant is hereby enjoined from suspending OASDI benefits,
or denying or suspending SSI payments, or making a determination
of an overpayment of such benefits and payments based solely on
an outstanding probation or parole violation warrant, including
any such warrant with one of the following National Crime Information
Center (NCIC) offense codes: 5011 (parole violation), 5012 (probation
violation), 8101 Uuvenile offenders- abscond while on parole), and 8102
Uuvenile offenders- abscond while on probation). 1
SECTION 3 REMEDIAL PROVISIONS
3.1 For all Class Members whose benefits were suspended solely
on the basis of an outstanding probation or parole violation warrant,
Defendant shall fully reinstate all benefits retroactive to the date
the benefits were suspended and on an ongoing basis. However, if
there is another basis for suspending benefits for any portion of
the retroactive period or ongoing benefit period, Defendant may
suspend such benefits upon notice to the individual with appeal
rights in conformity with SSA regulations. Except as stated herein,
all payments to Class Members are subject to regular payment, non-payment,
and reduced payment provisions of the Social Security Act.
3.2 For all Class Members for whom SSA has made an initial
determination of an overpayment, as defined in the Commissioner's
regulations (20 C.F.R. §§ 404.902U) and 416.1402),
Defendant shall reverse such overpayment determination and return
any funds already recovered unless any or all of those funds are
needed to recover another outstanding overpayment not related to
this Order and for which a notice was provided to the individual
as required in the Commissioner's regulations (20 C.F.R.§§ 404.904
and 416.1404).
3.3 For all Class Members who were denied SSI payments based
solely on an outstanding probation or parole violation warrant and
whose claims were otherwise fully developed, Defendant shall reopen
such claims and determine benefits based on the original application
date.
3.4 Unless critical or expedited case processing procedures
apply, for all Class Members with appeals pending at any administrative
level of determinations made solely on the basis of an outstanding
probation or parole violation warrant, Defendant shall review and
complete development of such cases based on the original date of
the appeal.
3.5 For all Class Members previously determined by SSA to
be disabled who filed a new application for SSI payments subsequent
to their suspension or denial, Defendant shall vacate any determination
of non-disability on the subsequent application if it was not made
in compliance with the requirements for continuing disability reviews
as provided in 42 U.S.C. § 423(£).
3.6 Following the Effective Date, SSA shall contact Class
Members through an informational notice (an OASDI or SSI one-time
class settlement informational notice) mailed via U.S. Postal Service
(U.S.P.S.) first class mail to the last known address in SSA records
with a designated post office box as the return address. Prior to
sending this informational notice, SSA shall match the addresses
in its records for all SSI Class Members who are not in current
pay against the U.S.P.S. National Change of Address (NCOA) file.
In those instances where a match is not made, the informational
notice will be sent with Forwarding Service Requested special handling.
The informational notice shall include a bolded Spanish language
paragraph including a brief description regarding this matter and
inviting the Class Members to contact their local Social Security
office for an explanation of the notice. SSA shall bear the full
cost of the informational notices. The informational notices shall
advise how SSA's policy regarding outstanding probation
and parole warrants has changed and that individuals may be entitled
to or eligible for benefits or payments for applicable periods of
suspension or non-payment. This informational notice will not require
a response on the part of the Class Member. SSA will follow its
normal operating procedures if an informational notice is returned
as undeliverable.
3.7 When providing specific relief to an OASDI or SSI Class
Member, SSA will mail an individualized notice to each Class Member.
This notice, to be sent via U.S.P.S first class mail to the last known
address in SSA records, will explain the specific relief that will
be provided. Those Class Members who have a Spanish language indicator
on their records will be sent a Spanish language notice. Those Class
Members with visual impairments who have requested that notices
be provided in an alternate format will be provided a notice in
the manner in which they have previously identified, along with
a notice in standard print format. SSA shall bear the full cost
of the notices. If a notice is returned as undeliverable, SSA will
follow normal operating procedures, including POMS SI 2301.240.C.l,
to attempt to locate the individuals.
3.8 To the extent that it is inconsistent with a provision(s)
in this Order, change(s) in any controlling statutes shall supersede
this Order.
3.9 This Order is not intended to change, modify, or revise
SSA's or the Office of Inspector General's implementation
of sections 42 U.S.C. §§ 402(x)(C) and 1382(e)(5)(A)
of the Social Security Act with regard to the disclosure of information
to federal, state, or local law enforcement.
SECTION 4 IMPLEMENTATION PLAN
No later than sixty (60) days following entry of this Order,
Defendant shall submit for the Court's approval a plan
for implementation of this Order that sets forth the anticipated
time frames for implementing the terms of the Order. The implementation
plan shall specify the time frames for: 1) posting a news item on
SSA's official, public website (as provided in Section
5.1 of this Order); 2) posting a notice of the provisions of this
Order in each SSA Field Office (as provided in Section 5.2 of this
Order); 3) identifying Class Members; 4) mailing the informational
notices described in Section 3.6 of this Order; 5) mailing the individual
notices described in Section 3.7 of this Order; 6) providing OASDI
relief by an automated process; 7) providing OASDI relief manually;
8) providing SSI relief manually; and 9) with respect to numbers
6, 7 and 8 herein, completing cases.
SECTION 5 PUBLICATION
5.1 No later than thirty days (30) days following the entry
date of this Order, SSA shall publicize the terms of this Order
by posting a news item on the home page of its official, public
website, www.socialsecurity.gov, that will summarize the key provisions,
and attach a copy of this Order.
Upon mailing the informational notices described in Section
3.6 of this Order, SSA shall post a notice of the provisions of
this Order in each SSA FO. This notice shall remain posted in each SSA
FO until SSA substantially completes the implementation of this
Order as described in Section 6.3 below.
SECTION 6 INQUIRIES, COMMENTING AND
REPORTING
6.1 SSA and Class Counsel shall each designate an individual
or individuals who will serve as a point of contact. The designated
individual(s) will act in good faith to address any inquiries from Class
Counsel related to the implementation of this Order.
6.2 SSA shall provide Class Counsel with an advance copy of
any newly created and subsequently revised draft POMS, HALLEX, Chief
Judge Bulletins, Emergency Messages to SSA components, template
individual notices to Class Members described in Section 3.7 of
this Order, draft informational notices to Class Members described
in Section 3.6 of this Order, any specialized Clark notice language,
and any other notices that effectuate any term of this Order. Class Counsel
shall provide comments, if any, to SSA, within five business days
of receiving the drafts. SSA will consider Plaintiffs' comments
in good faith, although SSA is not obligated to respond to and/or
incorporate these comments in the final instructions and notices.
6.3 SSA shall report the following information to Class Counsel:
I) the total number of potential OASDI Class Members; 2) the total
number of potential SSI Class Members; 3) the total number of OASDI
informational notices sent; 4) the total number of SSI informational
notices sent; 5) the total number of informational notices returned;
(items 3, 4 and 5 will be provided only once); 6) the total number
of OASDI cases completed by an automated process; 7) the total number
of OASDI cases completed manually; and 8) the total number of SSI
cases completed manually. SSA shall continue reporting the above
information quarterly to Class Counsel until it substantially completes
the implementation of this Order. For the purposes of this Order,
substantially completes means SSA completes at least ninety-five
(95) percent each of the OASDI and SSI cases. For the purposes of
this Section, "completes" means that SSA has provided the required relief
as stipulated in Section 3 of this Order or has apprised the individual
that no relief is appropriate. SSA shall further notify the Class
Counsel of any anticipated difficulties in adhering to the implementation
plan's time frames.
SECTION 7 CONTINUING JURISDICTION
7.1 The Court will retain jurisdiction over this matter for
the purposes of: (a) enforcing the provisions of this Order in the
event that one of the Parties claims that there has been a breach
of this Order; and (b) modifying this Order if jointly requested
by the Parties, or if the parties do not agree, upon good cause
shown by either Party. Both Class Counsel and Defendant's
counsel shall make reasonable efforts to resolve any issues with
regard to this Order.
7.2 Nothing in this Order prohibits the Defendant from promulgating
regulations regarding suspending OASDI benefits or denying or suspending
SSI payments as provided in 42 U.S.C. §§ 402(x)(l)(A)(v)
and 1382(e)(4)(A)(ii).
1. On August 20, 2010, SSA issued instructions to cease this
practice for individuals residing in New York, Connecticut or Vermont.
On May 9, 2011, SSA issued instructions to cease this practice nationwide.