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Fugitive Felons
I fought the law and the law (almost) won...
Reading M21-1MR, Part III, Subpart v, Chapter 8, Section A, 1. g. 'Fugitive Felons' we learn that to your VBA; "A fugitive felon is anyone who is fleeing to avoid prosecution, custody, or confinement after conviction for an offense, or attempt to commit an offense which is a felony in the place where committed, and violating a condition of probation or parole imposed for commission of a felony under Federal or State law."
By the VA definition, if there is a felony arrest warrant out for you, it doesn't matter if you're 'fleeing" or not. You don't even need to know that the warrant exists. The VA doesn't get concerned over all that.
"A beneficiary or dependent who is the subject of a valid outstanding felony arrest warrant is presumed to be a fugitive felon for VA purposes."
Read on to learn just how frightening this can be.
From Jim Stricklands Mailbag on VAWatchdog;
Jim;
I know you are a busy man but I really need assistance on where to go and what to do.
I am 100% rated. I am also awarded SMC and I drive a handicap equipped vehicle funded by VA. My home is being modified to accommodate my wheelchair, funded by VA, I was stopped for speeding in a state away from my home state the day after Thanksgiving 2007 and the officer stated I had a felony warrant out of a 3rd state. Since I had never been arrested nor even had a traffic violation I had no reason to ever suspect I had a Warrant. The officer couldn't tell me what the warrant was for, he just arrested me. I stayed in jail for a gruesome 5 days and posted a Fugitive Bond of $1000. Now I have to go to to the state where the warrant was issued to post a bond there to get this cleared up.
But, just yesterday I get "The Letter" from the VA stating that I was a Fugitive since they posted the Warrant on June 2006 that regardless if I get this cleared up or not they will with hold my check from that date until the date I show them the Warrant has been taken care of. That comes to about $60,000 for me. I'm positive I can get the Warrant business straightened out but the $60K scares the daylight out of me.
I have bills, a home and like everyone don't have $60k in the bank. If worse comes to worse is there any way to allocate that money to my mother, or request a hardship waiver. I had no knowledge of a warrant and I know they could care less if I knew or not but mistakes happen and this is one. I am in such a state of depression and am really borderline suicidal right now b/c I will be leaving my mother in a hell of a fix and I will be worth more dead than alive..I can't believe things like this happen especially in my mundane existence but there it is..a slap in the face..
Now..they state I can request a hearing within 30 days but if they don't hear from in within 60 days my check will be STOPPED March 1, 2008.
Please tell me what to do. The DAV rep is out until December 17th on vacation or leave whatever the case...I'm not sure they can handle this kind of stuff or not since it is not benefits.
Please tell me what to do if anything or go the other route..I'll be honest this scares the living crap out of me and it seems like something should have been written to protect the ones who knew nothing or could allocate the money to someone else. I did that before in that I had my mother granted approval to receive my checks every month...this is long..I'm sorry but I'm just bouncing off the walls..Thanks for your help and time.
Reply;
When I read your letter in December of 2007 I was shocked at how little I knew of the interaction that VA may have with law enforcement agencies. I'd glanced at rules about "fugitive felons" but since I don't know any, I didn't pay much attention. I suppose I thought the term would only apply to someone who broke out of prison after shooting a guard or two and was on a crime spree, terrorizing everyone they meet.
Not so.
The fact is that if you are in trouble with the law, your Veterans Benefits Administration wants to know about it and through a complex network of connections to other government agencies, they'll most often find out that you are in trouble.
Yes, this is the same agency that can't find the doctor's letter you submitted in evidence to support your claim. But they can manage to track you down to a small town police department's jail in a state where you don't reside based on a 2 year old felony warrant from another state entirely.
I wanted to know about the mystery warrant before I got too deep into this with you. I'm like many law abiding citizens, I have a deep suspicion of people who are arrested protesting their innocence as the cuffs are applied. The police don't arrest people without good reason, right? You said you'd never been arrested before. Because this was a felony warrant, that told me the alleged violation was more than a civil suit about property or similar.
As it unfolded, it seems that in June of 2006 you were in a vehicle in the parking lot of a convenience store. You were in that city and state visiting a friend. You were in the passenger seat and it wasn't your vehicle nor were you driving. You and your friend had purchased non-alcoholic beverages. You were in pain (a frequent problem from your service connected disability) and you opened a bottle of VA prescribed pills that were in the original labeled container and retrieved the appropriate dose of your medicine.
You were being observed by a police officer. He approached you to ask about those pills you were taking. He was suspicious because there were a lot of them and the drug, methadone, to his thinking was a drug used only by addicts. He checked you for warrants, asked about the reasons you were in his town and state and asked why you had so many pills.
In the end, the officer didn't arrest you nor did he write you any ticket or other documenting paperwork. He did confiscate your pills so that he could complete his investigation into the legitimacy of why you had methadone in a public place. He told you that you could call the station in a couple of days to find out the result of his investigation.
As one would suspect, you were frightened and indignant. The next day you were scheduled to return to your home state and you did. You went to your VA primary care physician and explained what happened and he refilled your pain medicine. While speaking to your doctor, the VA pharmacist and others, you were advised to just leave well enough alone. The common thought seemed to be that the police officer probably kept those drugs for his personal use. Hey, it happens. If you tried to recover the medicine, you'd only make trouble for yourself.
Little did you realize that the officer apparently tried to call the local VA clinic to ask why you had all those narcotics. We'll never know just what happened but we'll assume he was greeted by the infamous VA telephone triage system and was subjected to an hour or two of listening to how important his call was to the VA, endless transfers, disconnects and maybe even people who wouldn't give him information due to privacy laws.
Whatever it was that happened, since you didn't show up to recover your prescription, his suspicions were confirmed and a warrant was issued for your arrest. You were suddenly a felon with a warrant, a fugitive from the law who was fleeing to avoid lawful arrest and detention on a serious drug possession charge.
The system recognized that you resided in another state. So your name and numbers were entered into a national database, your home state was notified and this trickled down to your county of residence. Your local sheriff is charged with delivering subpoenas to appear in court to answer such charges and thus a deputy came looking for you.
We now know that the summons to appear was delivered to the wrong address. Somewhere along the line your house numbers were transposed and a digit removed. As you were by now a known felon, a fugitive drug addicted criminal fleeing from the justice system, it's likely that it was believed that you intentionally gave a fake address to throw off your pursuers. That it was a drug offense escalated the issue due to the priority of our country's ongoing war on drugs. Your name was entered into the FBI database.
Then you made the mistake of speeding during a holiday season in a small town. You were jailed for almost 5 days before a judge could be brought to a bench to free you on a bond amount you couldn't afford. You still weren't told what the original warrant was for.
While you were trying to correct this nightmarish FUBAR, the VBA stepped in with the news that your benefits were to be suspended.
When I enter a new benefits situation, I have a set of resources that provide me with the great majority of the answers I need. The most practical and useful is the M21-1MR. This is the document that details to the VBA just how they should handle a particular situation. While addressing things in practical terms, it also provides links to the text of the law for more detailed information.
http://www.warms.vba.va.gov/M21_1MR.html
In this case, the M21-1MR was my second thought. The first thing I told the veteran was that he needed a lawyer. As it happened, he was retaining a lawyer to represent him in the town where the warrant originated. That lawyer knew nothing of VA law. The VA benefits certified lawyers he contacted weren't familiar with the issues of fugitive felons and the VBA and there weren't any VSO's who would help either. His POA DAV representative was on vacation. He contacted me.
My approach to dealing with any situation that concerns VBA is almost always the same. There are priorities to be considered. In this instance, the veteran could not afford any sudden cut of his benefits. Whenever you get a letter from VBA you must read it carefully and then read it again. Most communications from VBA require a "timely" response. As you might suspect, this is an unforgiving rule and you ignore it at great risk. The VBA doesn't adhere to such a rule itself...it can respond to you in a week or a year or never and there's no penalty imposed.
This letter, like most from VBA, offers the veteran 2 periods in which to respond. The first 30 day period and then the 60 day period that runs concurrently. If you wish a personal hearing you have 30 days to reply. If you wish to file a Notice of Disagreement (NOD) to the action contemplated by VA, you have 60 days to reply.
During the first 30 day period you may reply and instruct VBA that you do not want any deductions made from your award while you await the outcome of your appeals. This is effective in almost all actions that would deduct all or part of your money for such things as apportionment, recoupment of an overpayment and so on. If you don't specifically instruct VBA that you don't want the proposed reduction or recoupment action to be initiated, they will proceed and when you win your appeal, that amount is repaid to you.
Before we did anything else, we drafted a brief letter to the VARO and instructed that we wished a personal hearing and that no deductions be made while we appealed. This buys time for the veteran to better study the options available.
The letter was timely delivered via certified mail, return receipt requested. It's worth noting that in theory, a telephone call should suffice and have the same effect. I recommend that you never call the VBA for any reason. When an issue as important as this hangs in the balance, trusting your fate to a telephone call is beyond foolish.
Now that step one was completed and we had some time, we went back to the M21-1MR. There we see, "Part 10. Matching Programs". The introduction in Chapter One tells us, "The Department of Veterans Affairs (VA) receives information on a regular basis from several Federal agencies and compares it to information used to determine the status of VA beneficiaries. The matches identify cases where there are apparent contradictions between information contained in VA records and information furnished by other Federal agencies that affect entitlement."
Read on to learn, "Information derived from the matches may be used to adjust VA benefit payments. Consider all instances of failure to report income or other entitlement factors for a possible fraud referral under the provisions of M21-1MR, Part III, Subpart vi, 5.A (TBD) or M21-1, Part IV, Chapter 36, Subchapter I." Now we know that if you pay taxes to IRS on earned income while you collect 100% IU from the VBA, you're likely to be "matched" for your fraudulent activity.
The authority and responsibility for these matches rests at Pension Maintenance Centers (PMC). Much of the following verbiage is copied and pasted in from the M21-1MR. I won't bother with "quotation" marks so that it may read easier.
The PMCs in Philadelphia, St. Paul and Milwaukee are responsible for receiving and processing all reports from matching programs involving pension recipients, including reports from
• Income Verification Matches
• SS Verification Matches
• SS Number Matches
• Prison and Fugitive Felon Matches
• Total Disability Income Provision (TDIP) Review Matches
• Civil Service Verification Matches, and
• Railroad Retirement Verification Matches.
From there we drill down to our concern today; Chapter 16 - Fugitive Felon Match.
Early on we see that;
38 U.S.C. 5313B prohibits payment to
· Department of Veterans Affairs (VA) beneficiaries while they are fugitive felons, and
· dependents of a veteran beneficiary who is a fugitive felon.
http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00005313---B000-.html
So far, so good. But at this point we see that the rules regarding fugitive felons are harsh and unforgiving.
A fugitive felon is defined as a person who is
• fleeing to avoid prosecution, custody or confinement for a felony, or
• considered a fugitive because he/she violated a condition of probation or parole imposed for commission of a felony.
A beneficiary or dependent who is the subject of a valid outstanding felony arrest warrant is presumed to be a fugitive felon for VA purposes.
A person is considered to be in fugitive felon status from the later of the following dates:
• the date of the warrant, or
• December 27, 2001, the date of the fugitive felon law.
This following deserves your very close attention, particularly the last sentence beginning with "Note";
VBA is responsible for
· controlling fugitive felon forms referred by OIG
· initiating due process procedures
· discontinuing benefits to beneficiaries and dependents during periods when the beneficiary or dependent is in fugitive felon status, and
· resuming benefits when adequate evidence is received that the warrant has been cleared.
Note: Upon receipt of adequate evidence that the warrant has been cleared, VA usually resumes benefits on the date the warrant is cleared, and not retroactively to the date benefits were discontinued. Typically, an “invalid” warrant was valid until the date it was declared invalid.
It's made clear above that if you are issued a warrant in January and because of bureaucratic bungling you don't learn of it until June and it's dropped with no charges or convictions in July, between January and July your benefits will not be paid. If you received benefits during that period, you are now in that status known as "overpayment" and recoupment processes will begin.
"But Jim", you cry to me, "I didn't know about this warrant. I took care of it as soon as I found out about it. I went to their court and there were no charges, no convictions, the DA confessed that it appears it was the fault of the city for getting my address wrong and an assistant district attorney apologized to me later for all my trouble. I didn't do anything wrong! VA understands all that and won't take my benefits, right?"
Wrong. Read on, from our now favorite guide...
The fact that a warrant has been dismissed, recalled, quashed (that is, annulled or set aside), or otherwise cleared does not mean that no action is required on the fugitive referral, unless it has been established that the warrant was cleared effective on or before the date the beneficiary went into fugitive status.
In most cases in which a warrant is dismissed, recalled, or quashed, there was still a valid warrant up to the date the warrant was cleared. VA benefits are subject to adjustment from the warrant date (or date of the law) until the recall/dismissal/quash date.
VA will make reasonable efforts to contact the official to establish that the beneficiary is no longer in fugitive status, but ultimately it is the responsibility of the beneficiary to provide evidence that fugitive status has been cleared.
Notes:
• Evidence that the beneficiary’s fugitive status has been cleared must originate with an official source at some level of government.
• Uncorroborated statements by the beneficiary, a family member, or a private attorney may not be used to establish that a beneficiary is no longer in fugitive status.
VA benefits may be discontinued because of fugitive felon status only if there is a valid felony warrant. If the beneficiary alleges that the warrant was for a misdemeanor, develop to determine whether there was a valid felony warrant. When developing the case, keep in mind that
• it is essential to distinguish between the warrant and the resolution of the criminal case in a situation where a beneficiary has been convicted of an offense
• the fact that the beneficiary was not convicted of a felony is not relevant to resolution of the fugitive felon issue, and
• the fact that an individual was charged with a felony but later pleads down to a misdemeanor does not change the fact that the warrant was a felony warrant.
Note: Some cases referred to an RO involve beneficiaries who were originally convicted of misdemeanors, but who violated probation or parole, which resulted in issuance of a felony warrant. It is the warrant agency’s characterization of the warrant as a felony warrant that is controlling.
In some instances the record of a criminal case may be expunged. This is normally done for first-time offenders to keep their records clean. Expunging a record is done after the fact and normally does not affect the underlying validity of a warrant.
Note: If the record was expunged at the request of the beneficiary, the beneficiary is responsible for requesting that the record be opened to establish that he/she is out of fugitive status.
In some instances a jurisdiction may seal the record of a criminal case. Sealing the record does not necessarily affect the determination as to whether a fugitive felon award adjustment is required. Again, the issue is whether there was a valid felony warrant for some period of time on or after the date of the fugitive felon law (December 27, 2001).
If you have been identified as a fugitive felon by the VBA your first reaction is probably disbelief and then anger will quickly follow. If you're as smart as the veteran who wrote to me to ask for help, you'll get past that quickly and begin to act for yourself. There is a light at the end of the tunnel.
"Overpayments created under the fugitive felon program are subject to waiver or compromise" says our M21-1MR. This veteran's VARO should have notified him of his right to seek waiver or compromise but didn't. The veteran was never notified that, "A debt that arises as a result of the payment of benefits to VA beneficiaries under the fugitive felon provision of law is subject to waiver consideration in accordance with 38 U.S.C. 5302, 38 CFR 1.955 – 1.970, and MP-4, Part I, Chapter 8."
That could have been a point of a future appeal.
In our case, we took the time in December 2007 to timely notify the VARO of the desire for a personal hearing and that compensation benefit payments continue uninterrupted. In January and February 2008 the veteran returned to the court of the town that issued the warrant. His problems were quickly settled with no arrest, no conviction, no fine and no record of any of that. In March we notified the VARO that the issue was settled.
In May 2008 the veteran was notified by his VARO "Please be advised that even if you do submit evidence establishing that the warrant has been cleared, we are still required to stop your compensation or pension benefits from June 2006 until the date the warrant is cleared."
We immediately notified the VARO that there should be no further action to lower the benefit until such time as a personal hearing was held and an appeal was formally made to the Committee On Waivers & Compromises. You can read more on that here http://www.va.gov/publ/direc/finance/05GC1_01bul.htm
On July 2nd 2008 the veteran received notice that there would be no need for the plea to go to the Committee On Waivers & Compromises. He was informed that no overpayment had been created and there was no reason to involve that Committee. Our interpretation of this letter is that the VARO completed its investigation and that the issue is settled.
Because of his quick action this veteran was able to overcome what could have been a financial disaster. He followed all the rules as strictly as the VBA did and was thorough in his documentation. His actions were timely even when it was inconvenient for him. Although he's severely disabled, he gathered together his letters to the VARO and got to a post office to properly deliver them.
Once your life is affected by any VA benefit, you are a part of that network forever and you're subject to each of the arcane rules and regulations that govern your DVA. The wise veteran pays close attention to all things VBA and is constantly learning. The benefits you earned are there for you to use as you deserve.
With that privilege comes the responsibility of protecting your benefits from the very agency that awarded them. The veteran who remains vigilant most often goes home the winner.
A Fugitive Felon notice;
Update Regarding Fugitive Felons
October 16 2008Jim Strickland
A veteran sought my help recently when he was notified of an adverse action by VBA. He came to me months after the notice of adverse action. He found me one week prior to a personal hearing at his Regional Office. The personal hearing was unusual in that it was taking place months after decisions and actions were in place.
He had not been able to obtain competent assistance during this time and the VBA had ruled against his own efforts to prevent adverse actions and recoupment of an alleged debt from overpayment resulting in a debt of about $155,000.00 had begun.
In December 2007 the veteran received a notice of proposed adverse action. He was informed that due to an unanswered felony warrant that dated to 1984 he was thus classified as a "fugitive felon" and ineligible to receive compensation benefits. As such, an overpayment had occurred and a debt created. The debt was to be recovered by recoupment of an amount deducted from his monthly compensation.
Upon receipt of this notice from VA, the veteran retained the services of a local attorney who in turn contacted another lawyer in the county and state where the warrant originated. The matter was soon brought before a court of jurisdiction and that court quashed the warrant, making it null.
The veteran notified the RO of this action accomplished in January of 2008 and assumed that the matter would be settled. From the date of notification to taking care of the warrant had taken less than a month.
The RO held that it is of no consequence whether the veteran knew of the warrant or not. If a warrant exists, according to RO thinking, the veteran is a fugitive felon and benefits must be terminated for that period.
This veteran has recognized, serious mental health issues. However, in my dealings with him he was stable and followed instructions well.
As time was short, our plan was simple. He would take a prepared statement along with him to the hearing. He practiced reading the statement prior to the hearing. In addition to the statement he took along a document that was submitted as New and Material evidence. The document consists of a brief research of the facts of the 'fugitive felon' rules and citations from BVA cases.
Our argument is based on the fact that to be a 'fugitive felon' the veteran must be fleeing from prosecution of an outstanding felony warrant. The BVA & SSA have ruled that to flee, the veteran must first have knowledge that a warrant exists.
Although that seems a logical conclusion that BVA has consistently upheld on appeals, Regional Offices continue to proceed directly to recoupment of alleged debts seemingly with no consideration to the precedent cases by BVA.
In this case, the veteran had asked for consideration by the Committee on Waivers and Compromises and the Committee had ruled against the veteran. In denying the veteran any relief, the committee noted that their decision had been made with appropriate "equity and good conscience."
The following are the statement read into the personal hearing record by the veteran and the evidence given to the hearing officer.
As of the date of this writing, we do not have a decision from the RO.
The Veteran's Statement
October 2008
In the matter of Veteran _______________ of Boston MA
I have been notified by the VA and SSA that I was a “fugitive felon” due to a warrant that was issued for my arrest in 1984.
I am told I have a debt that is some $155,000.00 dating from 2003 to 2008. The VBA has proceeded to recoup this alleged debt at a rate of $1500.00 per month.
I disagree with the conclusion that I was a fugitive felon and I say that no overpayment and subsequent debt has been created.
The actions of the Boston Regional Office to recoup the alleged overpayment debt are in error.
I was at no time was fleeing to avoid prosecution.
I was unaware any warrant and upon notification (December 2007) by the VBA and SSA , I immediately sought legal counsel and had such a warrant quashed. The Florida courts took care of this soon after I notified them in January of 2008.
In 1984 I was convicted of a minor charge of possession of marijuana. During the time I was serving my sentence a death occurred in my family and I asked permission to travel to England for funeral services. Permission was given to me by an officer of the court, ____________.
My time in England was longer than I anticipated and I contacted Mr. ___________ to ensure that I was in compliance with his orders. He told me that I shouldn't worry and that he would speak to the judge to have my case adjudicated as closed and done with.
During this time or soon after, Mr. ___________ died. I'm unaware of the circumstances of his death but I recall knowing that. I was not able to make any further progress in the transition of his services and as my mental health was deteriorating, I can't say I gave it much thought. He had told me that it was all taken care of.
I lived abroad in England and in New Zealand as well as here in Boston since that time. I have traveled in and out of the country extensively and I have renewed my passport. I assume I had numerous background checks during that process and at no time was I informed of any warrant outstanding.
During these years I have renewed my driver's license with no problems and I've even served on a jury here in Boston, MA.
I'm not proud to admit to you that I've been arrested during this time and there was no mention of a warrant during background checks. This was when my mental health began to deteriorate in earnest and I knew then I needed treatment.
I came to Boston to be near family and to receive treatment. I'm currently in treatment by the VA for my depression, anxiety and other mental health problems and I believe I'm making progress.
I was shocked to receive the notice from the VA and I thought that I did the correct thing by taking care of the problem. I had no way of foreseeing that even though I am not a “fugitive” that VA would take away my benefits that I need so much.
If this continues, I will not be able to keep up my treatments. In a matter of just a few months I can see where I'll again be homeless and will be forced to live on the streets again.
I don't understand the legal language involved in these rules and laws. I have a friend who has helped me by doing some research that I will submit as evidence to you today.
I respectfully ask that you look at the documents I'm giving you that show that the Boston Regional Office has not followed the recommendations of the VA Office of General Counsel opinions.
Further, you haven't considered the cases similar to mine in which the Board of Veterans Appeals found that persons in my situation aren't “fleeing” and therefore aren't fugitives. There are 5 such similar cases cited, it is my understanding that there are many more.
Thank you for your kind consideration.
End of Veteran's Statement
The evidence given to the RO to support the veteran's plea for relief;
The Fugitive Felon Laws - DVA & SSA applications
The BVA Rulings
A veteran eligible for compensation benefits may not be paid such benefit for any period during which he is a fugitive felon. See 38 U.S.C.A. § 5313B (West 2002).
The implementing regulation, 38 C.F.R. § 3.665(n), provides:
Fugitive Felons:
(1) Compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. Compensation or DIC is not payable on behalf of a dependent of a veteran for any period during which the veteran or the dependent is a fugitive felon.
(2) For purposes of this section, the term fugitive felon means a person who is a fugitive by reason of: (i) Fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (ii) Violating a condition of probation or parole imposed for commission of a felony under the Federal or State law. 38 C.F.R. § 3.665(n) (2007).
The VBA often takes the position, based on VA Circular 28-04-02, dated October 6, 2004, that a person who has an outstanding warrant for a felony offense is considered to be a "fugitive felon" whether or not he or she is literally fleeing.
The Board of Veterans Appeals is not bound by department manuals, circulars, or similar administrative issues. See 38 C.F.R. § 19.5 (2007).
The Board has arrived at a different definition of who is a "fugitive felon" based on a VA Office of General Counsel Opinion and federal case law.
Black's Law Dictionary (8th Ed. 2004) defines "fugitive" as a person who flees or escapes; a refugee; or as a criminal suspect or a witness in a criminal case who flees, evades, or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, especially by fleeing the jurisdiction or by hiding.
A VA Office of General Counsel opinion noted that the VA fugitive felon provision was modeled after Public Law No. 104-193, which barred fugitive felons from receiving Supplemental Security Insurance from the SSA and food stamps from the Department of Agriculture. VAOPGCPREC 7-2002. It was noted that Public Law No. 104-193 'was designed to cut off the means of support that allows fugitive felons to continue to flee.' Id. The SSA's fugitive felon provision is essentially identical to the VA provision cited above. See 42 U.S.C.A. § 1382(e)(4)(A).
Both the controlling statute and the regulation specifically include the intentional act of "fleeing to avoid prosecution" as a condition of finding fugitive felon status. As alluded to above, flight or hiding is also necessary to meet the legal definition of fugitive. See Blacks, supra.
To engage in an intentional act of fleeing from prosecution, the veteran would first have to know that he was facing prosecution.
There is no evidence that any warrant was served on him, that there was an attempt to serve a warrant on him, or that he was otherwise notified of it prior to receiving the December 2007 notice from the RO.
An individual must have at least some knowledge of prosecution before he can be found to be fleeing from such is consistent with the interpretation by several federal courts of the essentially identical SSA fugitive felon provision. In December 2005, the Second Circuit Court of Appeals found that under that statute, in order for a person to be fleeing prosecution: Thus there must be some evidence that the person knows his apprehension is sought.
The statute's use of the words "to avoid prosecution" confirms that for 'flight' to result in a suspension of
benefits, it must be undertaken with a specific intent, i.e. to avoid prosecution.
Oteze Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2nd. Cir. 2005).
The record does not show that the veteran engaged in the intentional act of "fleeing from prosecution".
Reference:
Citation Nr: 0806948
Decision Date: 02/29/08 Archive Date: 03/06/08 DOCKET NO. 05-35 569
Citation Nr: 0801187
Decision Date: 01/11/08 Archive Date: 01/22/08 DOCKET NO. 05-31 470
Citation Nr: 0809497
Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 05-11 407
Citation Nr: 0801368
Decision Date: 01/14/08 Archive Date: 01/29/08 DOCKET NO. 05-21 292A
Citation Nr: 0819924
Decision Date: 06/18/08 Archive Date: 06/25/08 DOCKET NO. 05-32 258A
The SSA Ruling
Federal Register /Vol. 71, No. 66 /Thursday, April 6, 2006 /Notices-1151
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\
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\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.
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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]
WORK IN PROGRESS
http://www.state.il.us/court/Opinions/AppellateCourt/2005/2ndDistrict/November/Html/2041076.htm
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=il&vol=app/2005/4040307&invol=3
http://supreme.justia.com/us/481/619/
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=481&invol=619
Section 5301. Nonassignability and exempt status of benefits
(a)(1) Payments of benefits due or to become due under any law
administered by the Secretary shall not be assignable except to the
extent specifically authorized by law, and such payments made to,
or on account of, a beneficiary shall be exempt from taxation,
shall be exempt from the claim of creditors, and shall not be
liable to attachment, levy, or seizure by or under any legal or
equitable process whatever, either before or after receipt by the
beneficiary. The preceding sentence shall not apply to claims of
the United States arising under such laws nor shall the exemption
therein contained as to taxation extend to any property purchased
in part or wholly out of such payments. The provisions of this
section shall not be construed to prohibit the assignment of
insurance otherwise authorized under chapter 19 of this title, or
of servicemen's indemnity.
(2) For the purposes of this subsection, in any case where a
payee of an educational assistance allowance has designated the
address of an attorney-in-fact as the payee's address for the
purpose of receiving a benefit check and has also executed a power
of attorney giving the attorney-in-fact authority to negotiate such
benefit check, such action shall be deemed to be an assignment and
is prohibited.
(3)(A) This paragraph is intended to clarify that, in any case
where a beneficiary entitled to compensation, pension, or
dependency and indemnity compensation enters into an agreement with
another person under which agreement such other person acquires for
consideration the right to receive such benefit by payment of such
compensation, pension, or dependency and indemnity compensation, as
the case may be, except as provided in subparagraph (B), and
including deposit into a joint account from which such other person
may make withdrawals, or otherwise, such agreement shall be deemed
to be an assignment and is prohibited.
(B) Notwithstanding subparagraph (A), nothing in this paragraph
is intended to prohibit a loan involving a beneficiary under the
terms of which the beneficiary may use the benefit to repay such
other person as long as each of the periodic payments made to repay
such other person is separately and voluntarily executed by the
beneficiary or is made by preauthorized electronic funds transfer
pursuant to the Electronic Funds Transfers Act (15 U.S.C. 1693 et
seq.).
(C) Any agreement or arrangement for collateral for security for
an agreement that is prohibited under subparagraph (A) is also
prohibited and is void from its inception.
(b) This section shall prohibit the collection by setoff or
otherwise out of any benefits payable pursuant to any law
administered by the Secretary and relating to veterans, their
estates, or their dependents, of any claim of the United States or
any agency thereof against (1) any person other than the indebted
beneficiary or the beneficiary's estate; or (2) any beneficiary or
the beneficiary's estate except amounts due the United States by
such beneficiary or the beneficiary's estate by reason of
overpayments or illegal payments made under such laws to such
beneficiary or the beneficiary's estate or to the beneficiary's
dependents as such. If the benefits referred to in the preceding
sentence are insurance payable by reason of yearly renewable term
insurance, United States Government life insurance, or National
Service Life Insurance issued by the United States, the exemption
provided in this section shall not apply to indebtedness existing
against the particular insurance contract upon the maturity of
which the claim is based, whether such indebtedness is in the form
of liens to secure unpaid premiums or loans, or interest on such
premiums or loans, or indebtedness arising from overpayments of
dividends, refunds, loans, or other insurance benefits.
(c)(1) Notwithstanding any other provision of this section, the
Secretary may, after receiving a request under paragraph (2) of
this subsection relating to a veteran, collect by offset of any
compensation or pension payable to the veteran under laws
administered by the Secretary the uncollected portion of the amount
of any indebtedness associated with the veteran's participation in
a plan prescribed in chapter 73 of title 10.
(2) If the Secretary concerned (as defined in section 101(5) of
title 37) has tried under section 3711(a) of title 31 to collect an
amount described in paragraph (1) of this subsection in the case of
any veteran, has been unable to collect such amount, and has
determined that the uncollected portion of such amount is not
collectible from amounts payable by that Secretary to the veteran
or that the veteran is not receiving any payment from that
Secretary, that Secretary may request the Secretary to make
collections in the case of such veteran as authorized in paragraph
(1) of this subsection.
(3)(A) A collection authorized by paragraph (1) of this
subsection shall be conducted in accordance with the procedures
prescribed in section 3716 of title 31 for administrative offset
collections made after attempts to collect claims under section
3711(a) of such title.
(B) For the purposes of subparagraph (A) of this paragraph, as
used in the second sentence of section 3716(a) of title 31 -
(i) the term "records of the agency" shall be considered to
refer to the records of the department of the Secretary
concerned; and
(ii) the term "agency" in clauses (3) and (4) shall be
considered to refer to such department.
(4) Funds collected under this subsection shall be credited to
the Department of Defense Military Retirement Fund under chapter 74
of title 10 or to the Retired Pay Account of the Coast Guard, as
appropriate.
(d) Notwithstanding subsection (a) of this section, payments of
benefits under laws administered by the Secretary shall not be
exempt from levy under subchapter D of chapter 64 of the Internal
Revenue Code of 1986 (26 U.S.C. 6331 et seq.).
(e) In the case of a person who -
(1) has been determined to be eligible to receive pension or
compensation under laws administered by the Secretary but for the
receipt by such person of pay pursuant to any provision of law
providing retired or retirement pay to members or former members
of the Armed Forces or commissioned officers of the National
Oceanic and Atmospheric Administration or of the Public Health
Service; and
(2) files a waiver of such pay in accordance with section 5305
of this title in the amount of such pension or compensation
before the end of the one-year period beginning on the date such
person is notified by the Secretary of such person's eligibility
for such pension or compensation,
the retired or retirement pay of such person shall be exempt from
taxation, as provided in subsection (a) of this section, in an
amount equal to the amount of pension or compensation which would
have been paid to such person but for the receipt by such person of
such pay.
The Fiduciary
Veterans in receipt of Veterans Administration benefits may be found incompetent to cope with the responsible management of those benefits. In that event, the VBA may appoint a fiduciary to manage the benefit for the veteran.Keywords:
Appeals, Denials, Board, CUE, Court, Claims, Lawyer, Reduction, Severance, Attorney, Compensation, Pension, Army, Marine, Air Force, Navy, Blue Water, Condition, Exam, Discharge, Honorable, Administrations, Affairs, VARO, Regional Office, Appeal, Soldier, Agent Orange, Radiation, SHAD, Project 112, Vietnam, OIF, OEF, Iraq, War, ED, Erectile Dysfunction, Diabetes, Bones, Joints, Arthritis, WWII, Korea, Korean, Honorable, Presumptive, Soldier, Troops, PTSD, Mental Health, Depression, Anxiety, Substance Abuse, Vietnam, Herbicide, Dioxin, Congress, Senate, Congressman, Senator, Sleep Apnea, Cancer, Mesothelioma, Veteran, DIC, DEA, Chapter 35, Dependent, Dependents, 21, 526, 4140, Unemployability, VAMC, Medical Center, DRO, Officer, Enlisted, VSR, RSVR, VSO, Military, Sergeant, MOS,
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