Home
Fleeing Felons: Martinez Emergency Message Update
Effective April 1, 2009, the Social Security Administration (SSA) introduced EM-09025, an Emergency Message (EM) regarding the processing of Title II, Title VIII, Title XVI payments as a result of the settlement agreement in Martinez, et al. v. Astrue. The EM marks the latest development in the SSA’s policies on benefits pertaining to fugitive or “fleeing” felons.
BACKGROUND
“Fleeing” Felons
Since 1996, the SSA’s fugitive felon provisions have worked in conjunction with the FBI and state law officials to apprehend individuals attempting to use disability benefits while avoiding prosecution. However, the ambiguous meaning of “fleeing” within the SSA regulations allowed for the sanctioning of individuals who had not been evading the law or were completely unaware of existing warrants. The SSA policies provided no statutory time limit on outstanding warrants for fugitives. Jhirad v. Ferrandina, 486 F.2d 442, 444 (2d. Cir 1973). The government could then terminate one’s benefits due to events that occurred decades before, or in a state unwilling to seek extradition. Often, individuals would leave the state of the felony – unaware of any unsettled warrants – only to have the charges surface upon the receipt of a traffic ticket or minor infraction.
In 2004, the Social Security Protection Act banned payment of Title II benefits to fugitive felons and probation/parole violators unless a showing of “good cause” could be made. Under 42 USC 402(x)(1)(A), the SSA awarded good cause if the individual was legally exonerated or if the warrant was wrongly issued. The SSA could award discretionary good cause upon the review of mitigating factors such as the severity of the crime and the length of time between the receipt of the warrant and the original incident. Despite the good cause exception, the benefits prohibitions affected hundreds of thousands of claimants.
Court Interpretation
Due to a growing amount of cases in which benefits of alleged fugitive felons were suspended without proper notice or procedure, courts began to interpret the provisions as requiring intent to flee. In 2005, the Second Circuit in Fowlkes held that “there must be some evidence that the person knows his apprehension is sought.” As a result of Fowlkes, the SSA issued Acquiesce Ruling 06-1(2), which barred the suspension of an alleged fugitive felon’s benefits based solely on the existence of a warrant. Fowlkes v. Adamec, 432 F.3d 90, 97 (2005 2d Cir. 2005). Since “flight” entails the act or instance of fleeing, the court interpreted the statute to call for the specific intent to avoid prosecution. In 2004, the Western District Court of Michigan overruled the SSA Appeals Council in Blakely, holding that the council lacked evidence of intentional flight. Weighing the circumstantial evidence, the court found:
"[E]ven though claimant was aware of the warrant, where claimant was not aware of warrant when he left state, claimant did not attempt to conceal himself, claimant was financially and physically unable to travel to state that issued warrant, and state refused to extradite claimant, even though he volunteered to return." Blakely v. Commissioner of Social Security, 330 F.Supp. 2d. 910 (W.D. Mich. 2004).
Martinez: Effects on Fugitive Felon Cases
The settlement agreement reached in Martinez v. Astrue provides new instructions for Title II, Title VIII, Title XVI, and representative payee benefits involving outstanding felony warrants. The change appears to be a positive step in preventing the sanctioning of individuals who have little to no notice of outstanding warrants.
Emergency Message-9025
Beginning April 1, 2009, the SSA will suspend or deny benefits (or prohibit the claimant from acting as a representative payee) only if the outstanding felony warrant falls under the following offenses:
- Escape (offense code 4901)
- Flight to avoid prosecution, confinement, etc. (offense code 4902)
- Flight Escape (offense code 4999)
Thus, according to EM-9025, benefits in fugitive felon cases will not be suspended unless the individual falls under one of the three restricted categories, or if the claimant has a parole/probation violation warrant.
The Martinez EM applies to claimants in all states. If an individual has more than one felony warrant, the claimant will be sanctioned only during months in which he or she has a 4901, 4902, or 4999 offense code. The EM should be used in place of the Acquiescence Ruling set forth by Fowlkes. Thus, EM-9025 allows for the reinstatement of claimants’ benefits suspended due to pre-conviction warrants. More information regarding eligibility determinations, representative payee application, and procedural guidelines can be found at:
