[Federal Register Volume 71, Number 66 (Thursday, April 6, 2006)]
[Notices]
[Pages 17551-17552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3259]


-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION


Social Security Acquiescence Ruling 06-1(2); Fowlkes v. Adamec, 
432 F.3d 90 (2d Cir. 2005): Determining Whether an Individual Is a 
Fugitive Felon Under the Social Security Act (Act)--Titles II and XVI 
of the Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

-----------------------------------------------------------------------

SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commission of 
Social Security gives notice of Social Security Acquiescence Ruling 06-
1(2).

DATES: Effective Date: April 6, 2006.

FOR FURTHER INFORMATION CONTACT: Stephanie Fishkin Kiley, Office of the 
General Counsel, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 965-3483, or TTY (800) 966-
5609.

SUPPLEMENTARY INFORMATION: We are publishing this acquiescence ruling 
in accordance with 20 CFR 402.35(b)(2).
    An acquiescence ruling explain how we will apply a holding in a 
decision of a United States Court of Appeals that we determine 
conflicts with our interpretation of a provision of the Social Security 
Act (Act) or regulations when the Government has decided not to seek 
further review of that decision or is unsuccessful on further review.
    We will apply the holding of the court of appeals decision as 
explained in this acquiescence ruling to all determinations or 
decisions at all levels of the administrative review process that an 
individual is a fugitive felon pursuant to sections 202(x)(1)(A), 
205(j)(2)(C), 1611(e)(4)(A), and 1631(a)(2)(B) of the Act. The ruling 
applies to all title II and title XVI applicants, title II 
beneficiaries, and title XVI recipients who live in Connecticut, New 
York, or Vermont. If we made a determination or decision that an 
individual was a fugitive felon under the relevant provisions of the 
Act, which affected an individual's application for title II benefits 
or title XVI payments, or resulted in nonpayment of title II benefits 
or suspension of title XVI payments, between December 6, 2005, the date 
of the court of appeals decision, and April 6, 2006, the effective date 
of this acquiescence ruling, the individual may request application of 
the acquiescence ruling to the prior determination or decision. The 
individual must demonstrate, pursuant to 20 CFR 404.985(b)(2), 
416.1485(b)(2), that application of this acquiescence ruling could 
change our prior determination or decision.
    Additionally, when we received this precedential court of appeals 
decision and determined that an acquiescence ruling might be required, 
we began to identify those cases within the circuit that might be 
subject to readjudication if an acquiescence ruling was subsequently 
issued. Because we have determined that an acquiescence ruling is 
required, we will send a notice to individuals we have identified whose 
title II or title XVI application, title II benefits, or title XVI 
payments may be affected by the acquiescence ruling. The notice will 
provide information about this ruling and the right to request 
readjudication under it. It is not necessary for an individual to 
receive a notice in order to request relief based on this acquiescence 
ruling.
    If this acquiescence ruling is later rescinded as obsolete, we will 
publish a notice in the Federal Register to that effect as provided for 
in 20 CFR 404.985(e), 416.148(e). If we decide to relitigate the issue 
covered by this acquiescence ruling as provided for by 20 CFR 
404.985(c), 416.1485(c), we will publish a notice in the Federal 
Register stating that we will apply our interpretation of the Act or 
regulations involved and explaining why we have decided to relitigate 
the issue.

(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance; 96.006--
Supplemental Security Insurance)

    Dated: March 29, 2006.
Jo Anne B. Barnhart,
Commissioner of Social Security.

Acquiescence Ruling 06-1(2)

Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005): Determining Whether 
an Individual is a Fugitive Felon Under the Social Security Act 
(Act)--Titles II and XVI of the Act.\1\
---------------------------------------------------------------------------

    \1\ Although Fowlkes was a title XVI case, the Act provides the 
same standard under title II for determining whether an individual 
is a fugitive felon.
---------------------------------------------------------------------------

    Issue: Whether an outstanding warrant or similar order for the 
arrest of an individual on a felony charge is, on its own, 
sufficient evidence for the Agency to determine that an individual 
is a fugitive felon under the Act and, therefore, not entitled to 
receive title II

[[Page 17552]]

benefits or ineligible to receive title XVI payments.
    Statute/Regulation/Ruling Citation: Sections 202(x)(1)(A) and 
1611(e)(4) of the Social Security Act (42 U.S.C. 402(x)(1)(A) and 
1382(e)(4)); 20 CFR 416.202(f) and 416.1339.
    Circuit: Second (Connecticut, New York, Vermont). Fowlkes v. 
Adamec, 432 F.3d 90 (2nd Cir. 2005).
    Applicability of Ruling: This ruling applies to all 
determinations or decisions at all levels of the administrative 
review process that an individual is a fugitive felon within the 
meaning of sections 202(x)(1)(A) and 1611(e)(4) of the Act. This 
ruling applies to all title II and title XVI applicants, title II 
beneficiaries, and title XVI recipients who live in Connecticut, New 
York, or Vermont.
    Description of Case: In 1997, Felipe Fowlkes applied for and was 
found eligible to receive supplemental security income (SSI) 
disability payments under title XVI of the Act. In September 1999, 
he was indicted in Virginia on two felony charges. On March 16, 
2000, the Agency notified Mr. Fowlkes, who at that time resided in 
New York, that his eligibility for SSI payments would be suspended 
retroactively to September 1999 because of two outstanding felony 
warrants from Virginia. Mr. Fowlkes requested administrative review 
and, after a hearing, an ALJ issued a decision finding that because 
he had not satisfied the outstanding felony arrest warrants, Mr. 
Fowlkes was fleeing to avoid prosecution as described in section 
1611(e)(4) of the Act, 42 U.S.C. 1382(e)(4). Accordingly, the ALJ 
found that suspension of Mr. Fowlkes' SSI payments was proper 
because he was a fugitive felon under the Act.
    Mr. Fowlkes sought judicial review, not under the Act, but based 
on a claim that the Agency violated his civil rights. The district 
court dismissed Mr. Fowlkes' civil rights claim, without reaching 
the issue of whether or not Mr. Fowlkes was a fugitive felon under 
the Act. On appeal, the Second Circuit converted the action into one 
seeking review, under section 1631(c)(3) of the Act, of the Agency's 
fleeing felon determination and remanded the case to the district 
court for further proceedings consistent with its opinion.
    Holding: The Second Circuit held that the Agency could not 
conclude that an individual is fleeing to avoid prosecution, 
custody, or confinement from the mere fact that an outstanding 
felony arrest warrant or similar order exists. Specifically, the 
court stated that ``fleeing'' is understood to mean the conscious 
evasion of arrest or prosecution. The court determined that for 
``flight'' to result in a suspension of benefits, it must be 
undertaken with the specific intent to avoid prosecution. 
Accordingly, the court concluded that for the Agency to suspend 
benefits on the basis that an individual was ``fleeing,'' the Agency 
must have some evidence that the individual knows that his 
apprehension is sought. The court found the implementing regulation 
consistent with this construction of the Act. In addition, the court 
interpreted the implementing regulation to permit the Agency to 
suspend benefits only as of the date of a warrant or order issued by 
a court or other appropriate tribunal on the basis of a finding that 
an individual has fled or was fleeing from justice.
    Statement as to How Fowlkes Differs from the Agency's Policy: We 
interpret section 1611(e)(4) of the Act to mean that a person is 
``fleeing to avoid prosecution, custody, or confinement'' when a 
person has an outstanding warrant for his or her arrest, even if 
that person is unaware of that warrant.
    The Second Circuit Court of Appeals rejected this 
interpretation. The Second Circuit held the term ``fleeing'' to mean 
``the conscious evasion of arrest or prosecution.'' The court 
determined that for ``flight'' to result in a suspension of 
benefits, it must be undertaken with the specific intent to avoid 
prosecution. Thus, for the Agency to take adverse action against an 
individual described in the Act as ``fleeing to avoid prosecution, 
custody, or confinement,'' the Agency must have some evidence that 
the individual knew his apprehension was sought.
    Explanation of How SSA Will Apply the Fowlkes Decision Within 
the Circuit: This ruling applies to all determinations or decisions 
at all levels of the administrative review process that an 
individual is a fugitive felon within the meaning of sections 
202(x)(1)(A) and 1611(e)(4) of the Act. This ruling applies to all 
title II and title XVI applicants, title II beneficiaries and title 
XVI recipients who live in Connecticut, New York, or Vermont.
    We will not use the existence of an outstanding felony arrest 
warrant or similar order as the sole basis for finding that an 
individual is fleeing to avoid prosecution, custody, or confinement 
and is, therefore, a fugitive felon subject to withholding of title 
II benefits or ineligibility to receive title XVI payments. Before 
we determine that a title II or title XVI applicant, title II 
beneficiary, or title XVI recipient is a fugitive felon, we must 
have evidence that the individual knows that there is an outstanding 
felony arrest warrant, and the outstanding arrest warrant must have 
been issued on the basis that the individual has fled or is fleeing 
from justice.
    Cross References: Program Operations Manual System, sections SI 
00530.010 and GN 02613.010.

[FR Doc. 06-3259 Filed 4-5-06; 8:45 am]
BILLING CODE 4191-02-M