Oteze Fowlkes v. Adamec, Docket No. 03-6095.

• Decision Date: 06 December 2005
• Docket Number: Docket No. 03-6095.
• Citation: 432 F.3d 90
• Parties: Felipe OTEZE FOWLKES, Plaintiff-Appellant, v. John ADAMEC, Counselor, Paul Thomas, District Manager, and Joseph F. Gibbons, Administrative Law Judge,<SMALL><SUP>1</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 90

432 F.3d 90

Felipe OTEZE FOWLKES, Plaintiff-Appellant, v. John ADAMEC, Counselor, Paul Thomas, District Manager, and Joseph F. Gibbons, Administrative Law Judge,¹ Defendants-Appellees.

Docket No. 03-6095.

United States Court of Appeals, Second Circuit.

Argued: November 16, 2005.

Decided: December 6, 2005.

Gerald A McIntyre, National Senior Citizens Law Center (Roberta L. Mueller, on the brief), Los Angeles, CA, for Plaintiff-Appellant.

Dennis J. Canning, Assistant Regional Counsel, Social Security Administration (Lisa De Soto, General Counsel, Barbara L. Spivak, Chief Counsel, Region II, Social Security Administration; Joseph A. Pavone, United States Attorney for the Northern District of New York, Albany, NY, on the brief), New York, NY, for Defendants-Appellees.

Rochelle Bobroff, AARP Foundation Litigation (Stuart Cohen, AARP Foundation Litigation; Michael Schuster, AARP, on the brief), Washington, D.C., for Amicus Curiae AARP in support of Plaintiff-Appellant.

Catherine M. Callery, Greater Upstate Law Project, Inc., Rochester, NY; Louise M. Tarantino, Greater Upstate Law Project, Inc., Albany, N.Y. (Barbara Samuels, Legal Services for New York City, New York, NY; William Leinhard, Urban Justice Center, New York, NY; Joanne Lewis, Connecticut Legal Services, Middletown, CT; Charlotte Fischman, Kramer

Levin Naftalis & Frankel LLP, New York, NY; Greg Bass, Greater Hartford Legal Aid, Inc., Hartford, CT, Maryann Zavez, South Royalton Legal Clinic at Vermont Law School, South Royalton, VT; Shelley White, New Haven Legal Assistance Assoc., New Haven, CT, on the brief), for Amici Curiae GULP, et al., in support of Plaintiff-Appellant's request for reversal of the District Court's decision.

Before: STRAUB and RAGGI, Circuit Judges, and RAKOFF, District Judge².

STRAUB, Circuit Judge.

Plaintiff-Appellant Felipe Oteze Fowlkes ("Fowlkes") appeals from a March 31, 2003, judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) dismissing his civil rights action, which alleges improper suspension of his social security benefits, and declining to treat the action as a petition for review of a decision of the Social Security Administration ("SSA" or the "Commissioner"). For the reasons stated below, we remand this action to the District Court with instructions to treat Fowlkes's complaint as a petition for review of the Commissioner's suspension of Fowlkes's benefits and to remand to the Commissioner to examine whether Fowlkes's benefits were suspended as of the date of a warrant or order issued by a court or other authorized tribunal on the basis of a finding that Fowlkes fled or was fleeing from justice, pursuant to 42 U.S.C. § 1382(e)(4)(A) (2000) and 20 C.F.R. § 416.1339(b)(1).

FACTS AND PROCEDURAL BACKGROUND

In 1997, Fowlkes applied for and was granted Supplemental Security Income ("SSI") benefits after an Administrative Law Judge ("ALJ") determined that he was disabled based on a mental illness. On September 7, 1999, Fowlkes was indicted by a grand jury in Nottaway County Circuit Court in Virginia for felony larceny, and on November 2, 1999, Fowlkes was indicted in the same court for making a false material statement on a voter registration form.

On March 16, 2000, the SSA informed Fowlkes — who was then residing in Schenectady, New York — that he had been determined to be a fugitive felon ineligible for SSI benefits on the basis of the Virginia indictments. The notice stated that Fowlkes's benefits were being suspended retroactively to September 1999, although Fowlkes had already been paid for months between September 1999 and March 2000.³ The SSA considered the benefits to be an overpayment.

Fowlkes requested a hearing to challenge the suspension of his benefits, and testified before an ALJ on November 29, 2000. In ruling after the hearing, the ALJ noted that the issue under consideration was whether Fowlkes "continue[d] to be ineligible for [SSI] benefits" pursuant to 42 U.S.C. § 1382(e)(4)(A) "because of an outstanding warrant for arrest on felony charges." The ALJ concluded that because the Nottoway County Sheriff verified that two felony charges were pending against Fowlkes, he was a fugitive felon. On April 10, 2001, Fowlkes filed a request for review by the SSA Appeals Council, which denied his request.

On April 1, 2002, Fowlkes filed the instant action pro se in the United States District Court for the Northern District of New York. The complaint named as defendants John Adamec and Paul Thomas — two officials from the Schenectady, N.Y. SSA District Office — and the ALJ who had affirmed the SSA's decision, Joseph F. Gibbons, claimed that his right to due process had been violated, and requested an injunctive order reinstating Fowlkes's benefits and granting him compensatory and punitive damages.

Fowlkes argued in his complaint that the defendants wrongly determined that he was a "fleeing felon" under 42 U.S.C. § 1382(e)(4)(A) because, although Fowlkes was informed by the Nottoway County Sheriff's Department that he would be arrested if found in Virginia, the sheriff's department declined to issue an extradition warrant outside Virginia. Fowlkes argued that without an order of return to Virginia, he was not a fugitive from justice and thus could not be deemed a fleeing felon.

The district court sua sponte dismissed the case against ALJ Gibbons under the doctrine of quasi-judicial immunity, and referred the motion to dismiss to Magistrate Judge David R. Homer. The magistrate judge issued a Report and Recommendation on March 5, 2003, in which he recommended that Fowlkes's civil rights claim be dismissed, but that the action be converted into an appeal of an adverse decision of the SSA pursuant to 42 U.S.C. § 405(g), with Commissioner Joanne B. Barnhart substituted as defendant. The magistrate judge held that a person is "fleeing" under 42 U.S.C. § 1382(e)(4)(A) and 20 C.F.R. § 416.1339 when "`he hides or absents himself with the intent to frustrate prosecution.'" Fowlkes v. Adamec, No. 02-CV-468, Report-Recommendation and Order, Slip. Op., at 10 (N.D.N.Y. Mar. 5, 2003) (quoting United States v. Rivera-Ventura, 72 F.3d 277, 280 (2d Cir.1995)). The magistrate judge found that there was no evidence that Fowlkes knew of the charges prior to March 16, 2000, nor that he had fled the jurisdiction in an attempt to avoid prosecution. Therefore, the magistrate judge held that no evidence supported the ALJ's finding that Fowlkes was a fleeing felon prior to March 16, 2000. The magistrate judge further held that there existed some evidence that Fowlkes was a fleeing felon after March 16, 2000. Accordingly, the magistrate judge recommended that the decision of the Commissioner be reversed as to the effective date of the suspension and remanded for a recalculation of benefits, if any, to which Fowlkes was entitled for the period from September 1999 to March 2000.

In March 2003, Fowlkes filed pro se objections to the magistrate judge's report and recommendation. Fowlkes objected to the magistrate judge's conclusion that evidence existed that he was a fugitive felon as of March 16, 2000. He asserted that he did not actually receive notice of the basis for the suspension from the SSA until he voluntarily went to the Schenectady Police Department on April 1, 2000. Fowlkes also asserted that the SSA did not have the authority to deem him a fugitive felon absent a finding of such status in an extradition proceeding. Finally, Fowlkes stated that he had already received SSI benefits for the period between September 1999 and March 2000, and therefore did not wish for a remand to "recalculate" benefits, but appears to have been seeking a finding that he had never been a fleeing felon and thus that his benefits should be "restored" completely.

On March 31, 2003, the District Court adopted the recommendation of the magistrate judge only inasmuch as it recommended the dismissal of Fowlkes's civil rights claim. Addressing Fowlkes's claim as a Fifth Amendment due process claim pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the District Court noted that "courts should decline to create a remedy for constitutional violations where there is an `explicit congressional declaration' that injured parties should be `remitted to another remedy, equally effective in the view of Congress.'" Fowlkes v. Adamec, No. 02-CV-468, Decision & Order, Slip. Op., at 3-4 (N.D.N.Y. Mar. 31, 2003) (quoting Bivens, 403 U.S. at 397, 91 S.Ct. 1999). The District Court then noted that 42 U.S.C. § 405(g) provided for judicial review of disability benefit determinations. The District Court also held that even assuming Fowlkes's claim was actionable under Bivens, Fowlkes had failed to state a due process claim, as he was afforded an ALJ hearing that satisfied the "fundamental requirement of due process" that he have "notice and the opportunity to be heard at a meaningful time in a meaningful manner." Id. at 4 (internal quotation marks omitted).

The District Court also stated that "the magistrate judge's recommendation to convert the action and remand it back to the Commissioner for further determination" was the "only avenue available" to Fowlkes. Id. at 5. The District Court however, declined to adopt this recommendation because it found that Fowlkes "clearly does not want that relief." Id. The District Court therefore did not convert Fowlkes's action to a petition for review. Judgment was entered on March 31, 2003.

Fowlkes filed a timely notice of appeal on April 16, 2003. On January 15, 2004, this Court sua sponte appointed counsel to represent Fowlkes for this appeal, and directed the parties to brief (1) whether, under 42 U.S.C. § 1382(e)(4)(A), Fowlkes was "fleeing to avoid prosecution, or custody or confinement after conviction"; (2) what standard of review applies and what standard of deference, if any, is appropriate to...