Issue
You requested an opinion as to whether a recently "rescinded" Pennsylvania arrest
warrant constituted a "vacated" warrant under the mandatory good cause exception to
the fugitive felon rule, for purposes of determining whether number holder George
M~ (M~) would be required to repay retirement benefits he received while the warrant
was in effect.
Short Answer
The "rescinded" arrest warrant does not qualify as a "vacated" warrant for purposes
of satisfying the mandatory good cause exception to the fugitive felon rule. However,
M~ may satisfy the requirements for discretionary good cause. If so, he would not
be required to repay the retirement benefits he received when the warrant was in effect.
BACKGROUND AND FACE
Montana, began receiving retirement benefits in July 2001. On July 5, 2000, he pleaded
guilty to driving under the influence of alcohol in Delaware County, Pennsylvania.
His sentence included jail time, a fine, and a period of probation. Subsequently,
M~ was charged with violating his probation. You did not indicate how M~ violated
his probation or when this violation occurred.
On April 9, 2001, Patricia J~, a Delaware County, Pennsylvania judge, issued a bench
warrant for M~' arrest, after he failed to appear for a probation violation hearing.
Judge J~ then "rescinded" the bench warrant on February 25, 2006. M~ apparently continued
to receive retirement benefits without interruption from July 2001 through 2006, including
the period when there was a warrant for his arrest.
According to a report of contact form dated March 23, 2006, Bill S~, head of the bench
warrant department in Delaware County, Pennsylvania, told you that "rescinded" meant
that the warrant was "lifted or taken off." Mr. S~ explained that M~' bench warrant
was not invalidated back to April 9, 2001, but that "it was considered satisfied the
date the judge signed the bench warrant to rescind it on 2/23/06."
According to a report of contact form dated July 24, 2006, Mark M~, Deputy Director
of Adult Probation in Delaware County, Pennsylvania, told you that M~ would not have
been extradited on the bench warrant if he was outside of a 300 mile radius.
Federal Law
A. Overview of the Fugitive Felon RuleOur colleagues in San Francisco recently discussed
the fugitive felon rule in a prior opinion, as follows:
Beginning in August 1996, the Social Security Act precludes Title XVI SSI payments
to any person who is fleeing to avoid prosecution, or custody or confinement after
conviction, under the laws of the place from which the person flees, for a crime,
or an attempt to commit a crime, which is a felony under the laws of the place from
which the person flees. 42 U.S.C. § 1382(e)(4)(A) (hereinafter referred to as the
fugitive felon rule). Upon proof of an outstanding arrest warrant, SSA will suspend
a[n] SSI recipient's payments pending satisfaction of the warrant. 20 C.F.R. §§ 416.202(f)(1),
416.1339. If a person is suspended retroactively for a period during which benefits
were paid, the person would be overpaid and SSA would attempt to recover the overpayment.
Program Operations Manual System (POMS) SI 00530.001, 00530.025A. . . .
See Memorandum from Regional Chief Counsel, San Francisco, to Regional Chief ALJ, San
Francisco, Application
of the Good Cause Exception (June 26, 2006).
As the Agency noted in its Comments on Notice of Proposed Rulemaking on the fugitive
felon rule, "[w]e believe this legislation was passed to purposely prohibit the expenditure
of Federal funds to aid those who are violating the law." 65 Fed. Reg. 40492-20 (June
30, 2000).
Mandatory Good Cause Exception to the Suspension of Benefits Under the Fugitive Felon
Rule
The fugitive felon rule was amended by the Social Security Protection Act of 2004
(SSPA), effective January 1, 2005. Pub. Law. 108-203, 118 Stat. 493 § 203 (2004);
70 Fed. Reg. 72, 411 (2005) (which is the notice of proposed rulemaking (NPRM) on
the SSPA fugitive felon provisions); POMS GN 02613.025A, SI 00530.015A. The amendments extended the fugitive felon rule to Title II beneficiaries. 118 Stat.
493 § 103; POMS GN 02613.001. The amendments also added exceptions to the rule upon a showing of good cause, which
apply to both Title II and Title XVI claims. 118 Stat. 493 § 203; 42 U.S.C. §§ 402(x)(1)(B),
1382(e)(4)(B). In certain situations, it is mandatory that SSA not suspend benefits
or payments. These situations are as follows: when a court of competent jurisdiction
has found the beneficiary/recipient not guilty of the criminal offense; dismissed
the charges relating to the criminal offense; vacated the warrant for the beneficiary/recipient's
arrest in the criminal offense or issued any similar exonerating order; and when the
beneficiary/recipient was erroneously implicated in the underlying offense. 118 Stat.
493 § 203; 42 U.S.C. §§ 402(x)(1)(B), 1382(e)(4)(B); POMS GN 02613.025B, SI 00530.015B. If good cause is found and benefits or payments have been suspended, SSA is required
to reinstate benefits/payments and to repay any previously withheld payment and/or
recovered overpayment. POMS GN 02613.450A1, SI 00530.025A (emphasis added).
See Memorandum, Application of the
Good Cause Exception, supra (emphasis added).
2. Discretionary Good Cause Exception to the Suspension of Benefits Under the Fugitive
Felon Rule
In addition to the "mandatory good cause" provisions outlined above, the SSPA gives
the Commissioner the ability to find discretionary good cause for not suspending an
individual's benefits based on mitigating circumstances "if the individual establishes
that the offense underlying the warrant and imposition of the probation or parole
(as well as the violation of the probation or parole) was both nonviolent and not
drug-related," the beneficiary was not convicted of any subsequent felony crimes,
and the law enforcement agency will not extradite the fugitive or is unwilling to
act on the warrant. POMS GN 02613.025 (Good Cause Provisions).
Pennsylvania Law
Under Pennsylvania law, once a bench warrant has been executed, i.e., the defendant
has been arrested, and "at the conclusion of the bench warrant hearing following the
disposition of the matter, the judicial officer immediately shall vacate the bench
warrant." Pa. R. Crim. P. 150.
DISCUSSION
You asked whether a "rescinded" bench warrant was the same as a "vacated" warrant
for purposes of meeting the qualifications of the mandatory good cause exception to
the fugitive felon statute. We believe that the term "vacate," as used in the federal
statute, has a different meaning than "vacate" under the Pennsylvania rules of criminal
procedure. Moreover, the Pennsylvania court appears to use the words "vacate" and
"rescind" interchangeably.
As discussed above, the mandatory good cause exception to the fugitive felon rule
requires that the court has found the individual not guilty of the criminal offense,
vacated the warrant for arrest of the individual for the criminal offense, or issued
any similar exonerating order (or taken similar exonerating action), or [] the individual
was erroneously implicated in connection with the criminal offense by reason of identity
fraud.
118 Stat. 493 § 203; 42 U.S.C. §§ 402(x)(1)(B), 1382(e)(4)(B); POMS GN 02613.025B, SI 00530.015B (emphasis added).
POMS GN 02613.001 clarifies that a "[v]acated warrant" for purposes of the fugitive felon statute means:
to annul; to set aside; to cancel or rescind; to render an act void (e.g., an arrest
warrant). To declare a contract or act (warrant) void in its creation and to put an
end to it as though it never were. EXAMPLE: The felony warrant was vacated by the
judge. In this instance, the warrant and the charges on the warrant were eliminated
back to the date the warrant was issued as though the warrant never existed.
POMS GN 02613.001. Thus, the mandatory good cause exception applies when the defendant has been "exonerate[d]"
of the charges against him. In the context of warrants specifically, the language
of the statute indicates that the exception will apply when the warrant was erroneous
or invalid from its inception. In such cases, the defendant was not actually a fleeing
felon.
On the other hand, Mr. S~, the head of the bench warrant department in Delaware County,
Pennsylvania, explained that M~' "bench warrant was not rescinded back to 4/9/01 -
It was considered satisfied the date the judge signed the bench warrant to rescind
it on 2/23/06" (emphasis added). Furthermore, the Pennsylvania rules of criminal procedure
provide that bench warrants are "vacate[d]" as a matter of course once the bench warrant
has been satisfied, i.e., the defendant has been apprehended and appears at a hearing.
See Pa. R. Crim. P. 150 (once a bench warrant has been executed and a bench warrant hearing
has been held, "the judicial officer immediately shall vacate the bench warrant.").
Thus, the word "vacate" under the Pennsylvania state law merely means that the warrant
has been satisfied as of the date that it is vacated, not that the warrant has been
invalidated from the date of issuance.
Because M~' warrant remained valid from the time it was issued in April 2001, until
it was rescinded in February 2006, we believe that the mandatory good cause exception
is inapplicable in his case. This is consistent with the statute's legislative intent
not to provide federal funds to assist recipients in fleeing prosecution or confinement.
See 65 Fed. Reg. 40492-20.
We also note, however, that even if the mandatory good cause exception does not apply,
the Commissioner has the ability to find discretionary good cause for not suspending
an individual's benefit based on mitigating circumstances, if the individual establishes
that the offense underlying the warrant was both "nonviolent and not drug-related,"
the individual has not committed any subsequent felonies, and the law enforcement
agency will not extradite the individual. See POMS GN 02613.025 (Good Cause Provisions).
Here, the underlying offense was driving under the influence of alcohol. As noted
in POMS GN 02613.900, "if the charge is based on alcohol consumption, the charge is not a drug-related
crime." Moreover, Mr. M~, the Deputy Director of Adult Probation in Pennsylvania,
indicated that law enforcement would not extradite M~, since he resided in Montana
and was, therefore, outside a 300-mile radius. Thus, assuming M~' probation violation
was also nonviolent and not drug-related, and that he has not been convicted of any
subsequent felonies, the discretionary good cause exception may apply here.
If all of the requirements of the discretionary good cause exception are not met,
we believe that M~ would be required to repay the benefits he received between July
2001 and February 2006, when the warrant was outstanding, since the "rescinded" bench
warrant did not constitute a "vacated" warrant under the mandatory good cause exception.
See 118 Stat. 493 § 203; 42 U.S.C. §§ 402(x)(1)(B), 1382(e)(4)(B); see
also POMS SI 00530.030 (ineligibility applies from date valid warrant is issued through the month in which
the warrant is satisfied); see
also 20 C.F.R §§ 416.1339 (b)(1),(c) (same).
CONCLUSION
Accordingly, we advise that M~' "rescinded" bench warrant is not the same as a "vacated"
warrant for purposes of satisfying the mandatory good cause exception to the fugitive
felon rule. However, M~' situation may meet the requirements of the discretionary
good cause exception, in which case he would not be required to repay the retirement
benefits he received while the warrant was outstanding from July 2001 to February
2006.
Deana R. E~-L~
Regional Chief Counsel, Region VIII
By __________________________
Alexess D. R~
Assistant Regional Counsel