Update on Clark v. Astrue

From Jennifer Parish of UrbanJustice.org:

As many of you already know, the U.S. Court of Appeals for the Second Circuit recently ruled in Clark v. Astrue that an outstanding warrant is not sufficient evidence that a Social Security beneficiary is violating probation or parole.  Currently the decision affects only the named plaintiffs in Clark, but we hope to have a nationwide class certified.  If you represent anyone whose benefits have been suspended because of an outstanding warrant for probation or parole, please be sure to appeal the suspension (in addition to any other advocacy efforts, such as requesting a good cause exception or trying to get the warrant vacated).  NSCLC, Urban Justice Center, and Proskauer LLP represent the plaintiffs. 

Comments

[Bob]

I was in the postition of having my benefits suspended because of a 25 yr. old warrant. I worked hard and got it "dismissed" in 22 days. SSA and I are haggleing over the words dismissed and vacated.
Where the warrant was said upfront--"We don't want you/We won't come get you. And the age of the warrant makes it very unimportant to us."
I've been on disability for three years and SSA wants paid back for two of them.
The attorney who is handling my case doesn't fill me with hope.
How does Clark affect me?

[Patti Dudek]

I am not sure. If you can tell me what state you're in, I'll find someone that may know the answer.

[ole s petersen]

i was denied old age benefits because of an alleged arrest warrant. ssa tells me my benefit will resume in full pursuant to clark v. astrue but not until 2011. that is a long delay since the denial was due to ssa's unlawful actions. any help will be appreciated! ole s petersen co waystation 6221 main street houston tx 77030

[Bob]

Patti;
I'm in Colorado--but the warrant was out of Florida. With the newest defeat of the so-called "Fleeing Felon" law in a federal court, can you maybe explain all legal moves involved in the mess--er, law?

[Bob]

A follow-up.
As I said, it was 25 yrs. old. Have had passports, traveled overseas, Canada a dozen times, was a truck driver with a air cargo company,(investigated background), had drivers licenses, passports, U.S. Homeland Security Dept. Never has this come up in any background check.
The fist letter from SSA said that if I got it dismissed--I would be paid. Then the problems started over the dismiss and Vacate wording.

[Brandon Moses]

How long is the expectation for Class action decision on Clark v Astrue and how long before it is expected to be implemented. Is it worthwile to bring my own lawsuit against Astrue???? Will this expedite payments to me....Thank you

[Patti Dudek]

Brandon, no clue how long it will take. The wheels of justice are painfully slow. Cannot give you legal advice as to a specific case, sorry. I am not licensed in your state. But good luck!

[Patti Dudek]

Sorry, Ole, I am not licensed in Texas. Good luck and keep us posted.

[Tex Hamilton]

On May 8, 2011 social security issued an EMERGENCY MESSAGE to it's field offices regards Clark case. It advised them that until a POM is issued with guidlines to reimburse that they are not to do anything. This could take months as happened in Martinez v Astrue. Contact your congressman and ask them to pressure s/s to immediately issue POM directions so we can get paid!

[Patti Dudek]

No doubt a time that has been way too long coming!

[Brandon Moses]

I agree with Tex Hamilton ...however, since my benefits were denied prior to October 2006 ...I simply reapplied for benefits three days ago...based on the ruling applications for benefits after Oct 2006 can not be denied. This was done in the Martinez settlement. It would not matter on the retroactive payment issue, since the court will hopefully order repayment of any illegally witheld monies. I am hoping for reinstatement with possible retroactivity to Oct 2006. My application was accerpted and is being processed as we speak.

[Patti Dudek]

Thank you for sharing your experience with us!

[Frederick Smith]

My benefits we stopped in late April 2011. I told them at my hearing in late April that there was a class action lawsuit and ssa's policy was changing. I got denied at that hearing anyways and 11 days later the policy changed, I filed a appeal to learn ssa is sitting on it and cant do anything with it. I requested a OTR and she said I cant because they have no instructions. I told her there was a NATIONWIDE classaction approved and she said they are waiting to see how much of the nation it covers. Arent we apart of the SAME NATION? I feel hopeless and stuck now.

[Gil Gray]

My OASDI benefits were suspended in August, 2006 - got the mailing from the SSA to this effect and thought it was a "done deal". Now I see from limited research that I have been able to do, that due to the ruling in Clark vs Astrue that this may not be the case. But SSA, of course is not promulgating this ruling and in my case, has not resumed any payments although the administrtion has my current address.

What must I do to get the ball rolling? Should I engage my own attorney, although very difficult to do as cessation of benefits has left me virtually penniless - depending on family members for a meager subsistence.

The suspension of benefits was due to an outstanding warrant for parole violation - failure to make restitution to the state of Pennsylvania for unremitted sales taxes and witholding deductions - the result of a failed business. I made regular restitution payments of $500 for several years until health issues made it impossible for me to work and continue payments.

I contacted the parole officer when I first got the notice in August 2008 and was informed (since I was now living in Georgia with family) that they had no intention of exercising the warrant and seeking extradition to PA, but also that they would not vacate the warrant.

This has all been a major hardship for me and my family. All of my working life I faithfully funded my social security account with deductions from every paycheck. And now I'm told that payments are and have been suspended and (in inference by local SS personel) that there is basicaly nothing I can do about it.

Patti, what do you suggest? How should I proceed? I need some real help and/or suggestions as to where to get it and how!

[Patti Dudek]

Let me look into it. What state do you live in??

[Gil Gray]

I live in Georgia.

As for your Spartans, I'm with you on this one. Glad to see they finally beat Michigan this year. But my heart is with Penn State. Who cannot root for Joe PA and his class act? But must also share allegiances with the University of Georgia as we have five alumae in the family - sons and daughter-in-laws.

[Joseph Johns]

My dad's benefits were suspended for probation warrant (code 5012) dating back to 1974 in Hillsborough Florida in 2008. Judge Harry Coe, also known as hanging Harry because he would issue triple digit sentences to people, was the judge over that case as well he later killed himself when it came time to answer for his own crimes in 2000. When we tried to get the warrant dismissed we couldn't within the 60 day deadline, because his case transcripts had been destroyed by someone within the county possibly Coe as he is now nationally known as a corrupt judge. We got the Warrant dismissed 4 months later but SSI still says he owes back pay. Even though from what I understand it is suppose to go back to the date of issue as though it never existed. At the same time over the years his health has declined because he cannot pay for health care we are worried he could have an illness that could potentially become terminal if left unchecked. At the same time my family is drowning in debt.

Over the years my dad has never failed any background check therefore have no reason to believe he was fleeing.

I feel now that Clark V. Astrue has ruled the practice illegal that this should go back to the date of issue as thought it never existed but SSI still says he owes back pay. I'm wondering if besides appealing if there is anything my family can do before it is too late.

[Joseph Johns]

I forgot to mention my family lives in South Carolina now if that info helps you out a bit.

[Gil Gray]

This for Brandon Hamilton or for you Patti:
Brandon stated in a post on June 28, 2011 that he simply re-applied for benefits and his claim was being processed. Was this claim relevanat to Clark or to Martinez? If relevant to Clark, does this mean I only need to re-apply and then expect benefits to be paid? I have read the ruling in Clark and it states that the SSA can no longer deny claims based only on an outstanding warrant, right??

Brandon, can you send me your email address so we can communicate? You can reach me at [email protected].

[Patti Dudek]

I do know the information. But keep me posted on how things go for you.

[Gil Gray]

Patti, re my first post above and your question as to what state I live in - Georgia

[ole s petersen]

i sent the following e-mail to my represemtative in the us congress, john culberson of the seventh district of texas: the social security administration has extended the retention date of emergency message 11032 from november 30, 2011 to may 28, 2012 without issuing any chief judge bulletins or new or revised poms, thereby not complying with the courts' orders in clark v. astrue 06 cv 12551 (s.d.n.y.) ,and 08 5801 cv (2nd cir. (2010)). what can be done to remedy this unlawful action? i have had no answer.

[Brandon Moses]

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------)(
,USDCSDNY DOCUMENT . . ELECI'RONlCALLY fILED' DOC#:_'__~-r~- · DATEFlLED: _'2-12-'111
RY AN CLARK, et al.,
06 Civ. 15521 (SHS) Plaintiffs,
ORDER -against-
MICHAEL 1. ASTRUE, Commissioner ofthe Social Security Administration, in his official capacity,
Defendant.
-----------------------------------------------------------------)(
SIDNEY H. STEIN, U.S. District Judge.
Plaintiffs in this class action have moved pursuant to Local Civil Rule 6.3 for clarification and/or reconsideration of the Court's Opinion and Order of March 18,2011, granting their motion for class certification. See Clark v. Astrue, 274 F.R.D. 462 (S.D.N.Y. 2011). That motion is granted and the class definition is clarified as set forth below.
In light ofthe policies concerning the commencement ofthe limitations period, see Social Security Administration, Program Operations Manual System GN 03101.010 "Time Limit for Filing Administrative Appeals," available at https:llsecure.ssa.gov/poms.nsflln)(10203101 01 0, the Court grants plaintiffs' unopposed request to change the start date for the class period to October 24,2006. Consistent with the prior opinion, see Clark, 274 F.R.D. at 468, the Court further amends the class definition to ensure inclusion of all individuals with live claims on or after the date this class action was filed, including those with live challenges to overpayment determinations. At a court conference held on November 23, 2011, the Court proposed a revised class definition to meet the parties' concerns. The parties agreed at that conference that the
Case 1:06-cv-15521-SHS Document 83 Filed 12/02/11 Page 1 of 2

[Brandon Moses]

SSA Administration re:
Baltimore MD.
December 15, 2011
Due to SSA failure to follow simple instructions for handling benefit denials as set forth in the Court’s ruling regarding the class action suit in Clark vs. Astrue, the Court issued a clarification order on December 12, 2011. (attached).
In it clearly states that not only persons denied after October 24, 2006 are part of the class, but more importantly so are those persons that had timely appeals on that date.
This is not a change to the original order, but rather a directive to SSA that their implementation of the order as stated in EM-11032 is ERRONEOUS. EM-11032 wrongly states not to take any action on prior denials. The Court once again flatly rejects that position.
The court reiterated that persons with timely live appeals on that date are part of the class. By definition these persons necessarily had to be denied prior to October 24, 2006.
Further declaring that SSA policy as set forth in EM-11032 does not comply with the Court order certifying class action.
I meet all the tests for class member:
• Denial letter January 19, 2006 (same as lead Plaintiff in Clark vs. Astrue)
• Filed timely appeal within the 60 day limit.
• Continual appeal litigation from that day forward to the present.
• Denial solely based on an alleged violation of parole. No waiver.
• Denial date by law is the date beneficiary was NOTIFIED, not a date arbitrarily set by SSA.
On October 26, 2006 I HAD A TIMELY APPEAL.
Pursuant to the Court’s clarification order of December 12, 2011 my benefits were/are to be reinstated effective March 18, 2011.
It is hoped that EM-11032 will be amended to reflect this order.
Meanwhile I am requesting an OTR determination for immediate reinstatement of my benefits.

___________________
Lloyd Brandon Moses

[Patti Dudek]

Wow! Sorry to hear this. Keep up your fight & keep us posted!