SSA Changes "Fleeing Felon" Definition:
Settlement Reached in Nationwide Litigation

Martinez Settlement Approved: On September 24, 2009, the settlement of the nationwide "fleeing felon" class action was formally approved by the District Court. See the additional background materials below, plus coverage on Septebmer 26th in the Wall Street Journal.

Background:

Title II and SSI beneficiaries are statutorily barred from receiving benefits if they are "fleeing to avoid prosecution." The SSI bar has been in effect since 1996 and the Title II bar since 2005. In implementing these provisions, SSA has used an overly broad definition of the term "fleeing," as set forth in the POMS. Proposed regulations, published in 2005, have never been issued as final. Thus, the main authority remains in the POMS. The only current regulations deal with the 1996 SSI prohibition and have been the source of favorable court decisions rejecting the POMS policy.

Prior to the settlement, and according to the POMS, the mere fact that a warrant was active or outstanding amounted to a "fleeing" determination by SSA, with no effort to determine the individual's intent to avoid law enforcement or the prosecutor's intent to pursue the individual.

Some courts, including the U. S. Court of Appeals for the Second Circuit, Fowlkes v. Adamec, 432 F.3d 90 (2nd Cir. 2005), have held that SSA's interpretation of "fleeing" is unlawful. In Fowlkes, the court, relying on the criminal definition of "fleeing," held that the Social Security Act requires "intent to flee" and that the SSI regulation, 20 C.F.R. § 416.1339 (there are no Title II regulations), requires a court order that the individual is fleeing.

In October 2008, a nationwide class action lawsuit was filed challenging SSA's definition of "fleeing" and seeking to adopt an approach similar to that in the Second Circuit's Fowlkes decision. Martinez v. Astrue, Case No. 08-Civ-4735CW (N.D.Cal. Oct. 15, 2008). The class action has now been settled.

Even before the final approval of the settlement on September 24th, SSA began its implementation by issuing Policy Instructions. See EM-09025 (Apr. 1, 2009), available on the SSA website. Another set of instructions, EM-09024 (Mar. 31, 2009), deals with the selection of representative payees.

Notice of Proposed Class Action Settlement & Fairness Hearing [PDF]