TN 3 (04-09)

PS 02105.011 Florida

A. PS 09-140 Request for Reinstatement and Repayment of Suspended Benefits Following the Recall of a Probation Warrant – Florida Number Holder: Kenneth O. G~

DATE: July 17, 2009

1. SYLLABUS

A court issued an order granting a prosecutor’s motion to void and recall a violation-of-probation warrant and to dismiss the underlying charge that the number holder violated the terms and conditions of his probation. Because the court order nullified the warrant from the date of issuance forward, SSA could grant mandatory good cause for not withholding payment based on the probation violation warrant. Therefore, SSA was able to reinstate the number holder's eligibility for disability insurance benefits, repay any benefits previously withheld, and also remove the overpayment from his account.

2. OPINION

QUESTION

You noted a court order granting a prosecutor’s motion to void and recall a violation-of-probation warrant and to dismiss the underlying charge that the number holder violated the terms and conditions of his probation and asked whether the order entitled the number holder to reinstatement of his eligibility for disability insurance benefits, repayment of benefits previously withheld, and the removal of an overpayment from his account.

ANSWER

We conclude this order entitles the number holder to reinstatement of his eligibility for disability insurance benefits, repayment of benefits previously withheld, and the removal of the overpayment from his account.

BACKGROUND

Kenneth O. G~, the number holder (NH), began receiving disability insurance benefits in October 1976. On March 12, 1990, NH pled nolo contendre to attempted burglary of a structure or dwelling while unarmed, which is a felony in the second degree under Florida law. See FLA. STAT. ANN. § 810.02(3)(a) (West 2009). The Circuit Court of Escambia County sentenced NH to two years probation. On May 15, 1990, the court issued a probation warrant. The Social Security Administration (SSA) learned of the probation warrant on July 1, 2008, and suspended NH’s entitlement to benefits as of January 2005. SSA assessed NH with an overpayment of $36,882.00. Upon motion by the state prosecutor, the court issued an order on March 27, 2009, to void and recall the violation of probation warrant and dismiss the violation of probation charge.

DISCUSSION

The Social Security Act (Act) precludes the payment of benefits to any individual for any month (or part of a month) after January 1, 2005, for which he has an outstanding warrant for a violation of a condition of probation or parole imposed under federal or state law. See Act § 202(x)(1)(A)(v), 42 U.S.C. § 402(x)(1)(A)(v); Program Operations Manual System (POMS) GN 02613.001(A), GN 02613.010(A)(1). An individual need not actively hide or evade the law for this provision to apply and the existence of an unsatisfied warrant is all that is required to suspend the individual’s benefits. See POMS GN 02613.001(B)(3). Benefits shall not be paid from the date the warrant is issued, or January 1, 2005, whichever date is later, until the month the warrant has been satisfied. See POMS GN 02613.001(B)(8), GN 02613.010(A). A warrant is satisfied once it is dismissed, discharged, or otherwise discontinued by a judge. See POMS GN 02613.010(A)(4). We believe the March 27, 2009 order granting the prosecutor’s motion to void and recall the violation of probation warrant and dismiss the violation of probation charge is sufficient to satisfy the warrant. Therefore, SSA should reinstate NH’s entitlement to benefits.

We also believe NH is entitled to repayment of benefits previously withheld and the removal of the overpayment from his account. When SSA learned NH had an unsatisfied probation warrant dating back to May 1990, it suspended NH’s benefits and assessed an overpayment to his account of $36,882.00 for the period after January 2005. Under the mandatory good cause provisions of the Act, SSA will, for good cause shown, repay benefits previously withheld if a court of competent jurisdiction has (1) found the individual not guilty of the criminal offense, (2) dismissed the charges relating to either the criminal offense or the probation/parole violation on the unsatisfied warrant, (3) vacated the warrant for arrest of the individual for the criminal offense or the probation/parole violation, or (4) issued any similarly exonerating order, or if (5) SSA determines the individual was erroneously implicated in connection with the criminal offense by reason of identity fraud. See Act § 202(x)(1)(B)(iii); POMS GN 02613.025(B)(1). The March 27, 2009, order dismissing the violation-of-probation charge satisfies the mandatory good cause provision and requires the repayment of any previously withheld benefits. See Act § 202(x)(1)(B)(iii)(I); POMS GN 02613.025(B)(1). Therefore, NH is entitled to repayment those benefits previously withheld and the removal of the overpayment from his account.

CONCLUSION

NH is entitled to reinstatement of his eligibility for disability benefits as well as repayment of those benefits previously withheld and the removal of the overpayment from his account.

Very truly yours,

Mary A. S~
Regional Chief Counsel

By:____________________________
Christopher G. H~
Assistant Regional Counsel

B. PS 09-083 SSI - Ohio - Question on Mandatory Good Cause for Fugitive Felon Suspension for James M. Y~, Sr. Your Reference: S2D5G6 SI 2-3-12 OH Our Reference: 08-0172-NC

DATE: April 8, 2009

1. SYLLABUS

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193, supplemented by the Social Security Protection Act of 2004 (SSPA), Pub. L. 108-203, amended the Social Security Act to deny Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) to a person who is fleeing to avoid prosecution for a felony, or to a person who is violating a condition of probation or parole under federal or state law. 42 U.S.C. §§ 402(x)(1)(A)(iv), (v), 1382(e)(4)(A); 20 C.F.R. §§416.202(f), 416.1339; POMS GN 02613.010, SI 00530.010. The SSPA also created both mandatory and discretionary exceptions to the requirement that the Agency not pay benefits to fugitive felons or probation violators. These "good cause" exceptions mandate that the Agency not suspend a person's benefits, and/or repay benefits that have been withheld, if the person was a victim of identity theft, or if a court has found the person not guilty or otherwise exonerated them; dismissed the charge; or vacated the warrant for the person's arrest. 42 U.S.C. §§ 402(x)(1)(B)(iv), 1382(e)(4)(B); POMS GN 02613.025(B)(1), SI 00530.015(B)(1). The SSPA also provided that beneficiaries may establish good cause based on mitigating circumstances. Mitigating circumstances may exist if the criminal offense was non-violent and not drug-related; the beneficiary has not been convicted or pleaded guilty to a subsequent felony; and the law enforcement agency that issued the warrant refuses to extradite the beneficiary. POMS GN 02613.025(B)(2), SI 00530.015(B)(2); see 42 U.S.C. §§ 402(x)(1)(B)(iv), 1382(e)(4)(C). This precedent opinion provides guidance on how discretionary good cause should be applied when the beneficiary/recipient has a probation or parole violation warrant.

2. OPINION

You asked us whether the benefits of James M. Y~, Sr. were properly suspended and reinstated under the regulations governing payment of benefits to fugitive felons, and whether the mandatory good cause exception for repaying benefits for fugitive felons applies in his case. We conclude that Mr. Y~' case needs to be re-evaluated, because the information used to suspend his benefits was apparently erroneous. It appears that Mr. Y~ was not, in fact, wanted on a felony drug charge, as SSA had been informed. 1 Rather, it appears that a warrant was issued because Mr. Y~ was in violation of probation. However, based on the information available at the time of this opinion, we conclude that if Mr. Y~ had been a fleeing felon or probation violator, an action by a West Virginia state court could not have satisfied an underlying Florida warrant. Therefore, Mr. Y~' eligibility for benefits may have ceased at the time he violated his probation, unless discretionary good cause is found to allow his benefits to continue.

BACKGROUND

James M. Y~, Sr. is a Social Security beneficiary. In August 2007, SSA received information that Mr. Y~ was wanted on a felony drug charge in Florida, NCIC Offense Code 3599. See POMS GN 02613(B)(2)(a). According to the information that SSA received, Brevard County (Florida) issued a warrant for Mr. Y~' arrest on July 10, 2007. Based on this information, SSA suspended Mr. Y~' benefits as of July 2007. Mr. Y~ was subsequently arrested on February 16, 2008, in West Virginia, where he currently resides. The arrest was based on the Florida warrant. Mr. Y~ waived extradition. However, on May 28, 2008, the Circuit Court of Mason County, West Virginia, issued an order dismissing without prejudice the matter relating to the February 2008 arrest, because no action had occurred for a period of more than ninety days. Based on the action of the West Virginia court, SSA resumed paying Mr. Y~' benefits as of March 2008.

Because Mr. Y~' file did not contain a copy of the underlying Florida warrant, our office contacted the Clerk of Courts for Brevard County, Florida, to ask for a copy of the warrant. During a telephone conversation on March 16, 2009, our office was informed that Brevard County had no information suggesting that Mr. Y~ had ever been arrested on drug charges, and Brevard County had never issued a fugitive warrant for Mr. Y~. 2 However, the clerk's office stated that Mr. Y~ had been arrested for driving under the influence (DUI) in 2005. On January 31, 2007, he was found guilty of a lesser charge of reckless driving (a misdemeanor) under Florida Statute § 316.192. On August 14, 2007, Brevard County issued a warrant for Mr. Y~' arrest based on a violation of probation in connection with this conviction. According to the clerk's office and the web site for the Brevard County Clerk of Courts, that warrant remains open. See http://199.241.8.125/index.cfm?FuseAction=Criminal.Home (warrants/writs). 3

DISCUSSION

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193, supplemented by the Social Security Protection Act of 2004 (SSPA), Pub. L. 108-203, amended the Social Security Act to deny Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) to a person who is fleeing to avoid prosecution for a felony, or to a person who is violating a condition of probation or parole under federal or state law. 42 U.S.C. §§ 402(x)(1)(A)(iv), (v), 1382(e)(4)(A); 20 C.F.R. §§416.202(f), 416.1339; POMS GN 02613.010, SI 00530.010. The SSPA also created both mandatory and discretionary exceptions to the requirement that the Agency not pay benefits to fugitive felons or probation violators. These "good cause" exceptions mandate that the Agency not suspend a person's benefits, and/or repay benefits that have been withheld, if the person was a victim of identity theft, or if a court has found the person not guilty or otherwise exonerated them; dismissed the charge; or vacated the warrant for the person's arrest. 42 U.S.C. §§ 402(x)(1)(B)(iv), 1382(e)(4)(B); POMS GN 02613.025(B)(1), SI 00530.015(B)(1). The SSPA also provided that beneficiaries may establish good cause based on mitigating circumstances. Mitigating circumstances may exist if the criminal offense was non-violent and not drug-related; the beneficiary has not been convicted or pleaded guilty to a subsequent felony; and the law enforcement agency that issued the warrant refuses to extradite the beneficiary. POMS GN 02613.025(B)(2), SI 00530.015(B)(2); see 42 U.S.C. §§ 402(x)(1)(B)(iv), 1382(e)(4)(C).

Here, it appears that Mr. Y~ was not fleeing to avoid prosecution for a felony. Indeed, it appears he had already faced prosecution in Florida and had been convicted of a misdemeanor. See Fla. Stat. § 316.19 (setting maximum penalty at six months imprisonment and $1,000). Instead, the warrant appears to have been issued for a violation of his probation in connection with that conviction. Because the information that SSA used in suspending Mr. Y~' benefits appears to have been erroneous, further investigation is needed, and SSA needs to re-evaluate his case. POMS GN 02613.175(B)(2). If Mr. Y~ was never a fugitive felon, as SSA was previously advised, then there was no basis for suspending his benefits as of July 2007 on the basis of an unsatisfied fugitive felon warrant. However, it appears that there may have been reason to suspend Mr. Y~' benefits as of August 2007 because of an unsatisfied warrant for violation of a condition of Florida probation. POMS GN 02613.010(A)(1). This issue needs to be investigated and confirmed.

Regardless of whether further investigation shows that the Florida warrant for Mr. Y~' arrest was based on a felony or a probation violation, it would still be necessary to consider whether the mandatory or discretionary good cause provisions of the regulations apply in his case. It seems unlikely that the action of the West Virginia court would have any impact on an underlying Florida warrant. The West Virginia court order does not purport to satisfy or resolve the Florida warrant, and because Florida and West Virginia are separate and independent states under the federal constitution, the West Virginia court would not have jurisdiction to do so.

Rather, the order of May 28, 2008 dismissed Mr. Y~' case in West Virginia without prejudice based on the lack of any action at that time. SSA recognizes that many factors may lead a law enforcement agency to choose not to act on a warrant, especially if the individual is wanted in a different state. POMS SI 00530.260. Nevertheless, the underlying Florida warrant remains open and unsatisfied, as reflected by information received from the Brevard County Clerk of Courts. See http://199.241.8.125/index.cfm?FuseAction=Criminal.Home (warrants/writs). Therefore, the mandatory good cause provisions would not apply to Mr. Y~' case. POMS SI 00530.015(B)(1)(a). However, should further investigation show that Mr. Y~' underlying offense was a non-violent and not drug-related driving offense, he could remain eligible for continuing payment of benefits under the discretionary good cause provisions of the regulations. POMS SI 00530.015(B)(2)(a), (4)(d)-(f).

CONCLUSION

Further investigation is needed to establish the facts relating to the offense, if any, that Mr. Y~ may have committed in Florida, and any warrant issued for his arrest, or whether he is in violation of probation. These facts will determine whether, and for what period of time, his benefits should or should not be suspended. Based on the information available at the time of this opinion, it seems that the action of the West Virginia court did not satisfy the Florida warrant. Rather, it appears that the Florida warrant for violation of probation still stands. However, it also appears that the criteria for discretionary good cause may apply, so that the agency may decide not to suspend benefits based on the unsatisfied warrant for violation of probation.

Donna L. C~
Regional Chief Counsel, Region V
By:____________________________
Julie L. B~
Assistant Regional Counsel

1 If SSA does find, upon further investigation, evidence that there is a fugitive felony warrant for Mr. Y~, SSA should apply the policy dictated by the settlement in the case of Martinez v. Social Security Administration (N.D. Calif. 2009), as instructed in EM 09025.

2 We recommend that you obtain an official statement to this effect for the record.

3 We have attached copies of these records.


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PS 02105.011 - Florida - 08/05/2009
Batch run: 04/25/2016
Rev:08/05/2009