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.
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://126.96.36.199/index.cfm?FuseAction=Criminal.Home (warrants/writs). _/3
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://188.8.131.52/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).
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
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.