REPORT AND RECOMMENDED DECISON1
The plaintiff in this Supplemental Security Income ("SSI")appeal challenges the commissioner's interpretation of the"fleeing felon" rule established by 42 U.S.C. § 1382(e)(4). Thatstatute provides, in relevant part: No person shall be considered an eligible individual . . . with respect to any month if during such month the person is — (A) 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). The implementing regulation provides,in relevant part: (a) Basis for suspension. An individual is ineligible for SSI benefits for any month during which he or she is —
(1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees. . . . (b) Suspension effective date. (1) Suspension of benefit payments because an individual is a fugitive as described in paragraph (a)(1) . . . of this section . . . is effective with the first day of whichever of the following months is earlier — (i) The month in which a warrant or order for the individual's arrest or apprehension . . . is issued by a court or other duly authorized tribunal on the basis of an appropriate finding that the individual — (A) Is fleeing, or has fled, to avoid prosecution as described in paragraph (a)(1) of this section . . .; or (ii) The first month during which the individual fled to avoid such prosecution . . . if indicated in such warrant or order. . . . (c) Resumption of payments. If benefits are otherwise payable, they will be resumed effective with the first month throughout which the individual is determined to be no longer fleeing to avoid such prosecution. . . .20 C.F.R. § 416.1339.
The plaintiff received SSI benefits as a result of anapplication filed in December 1999. Record at 13. In January 2002the commissioner suspended payment of the benefits on the groundthat the plaintiff was fleeing to avoid prosecution for a felony.Id. A hearing on the suspension was held before anadministrative law judge on March 10, 2003. Id. Theadministrative law judge made the following relevant factualfindings in a decision dated May 21, 2003: In July, 2001 the claimant visited Ft. Lauderdale, Florida. While there, he was briefly detained by the Broward County, Florida police, after allegedly having purchased crack cocaine from [an] undercover police officer. He was released almost immediately and was not issued a summons. He was told by the law enforcement officials not to "show [his] face" in the area again. While no arrest was made initially, the county prosecutor decided to press charges the following day, in consequence of which an arrest warrant was issued on July 11, 2001 by the Broward County, Florida sheriff's office. The claimant left Florida unaware of the warrant. He was never given a summons or other papers relating to the matter. He was not notified of any criminal complaint or court proceedings. He briefly returned to Florida later that year, still unaware of the warrant. He was never arrested. The claimant knew nothing of the warrant until January, 2002, at which time the Social Security Administration notified him of its intent to terminate his Supplemental Security Income payments. Law enforcement officials in Florida are unwilling to attempt to extradite the claimant, but they continue to insist that he turn himself in to satisfy the warrant. The undersigned is satisfied by this record that although the claimant is now aware of the warrant, and although he would like to settle the warrant, and although he has been informed by law enforcement officials in Florida that he must turn himself in there to satisfy the warrant, he is unable to travel to Florida for two reasons. First, he can ambulate only with assistive devices, is wheelchair bound at times, and is prevented by his medical condition from traveling. Second, he has been released on bail in Maine, pending disposition of a separate charge, and a condition of his bail is that he remain in the State of Maine.Id. at 17. The administrative law judge found that theplaintiff did not flee and was not fleeing the state of Floridato avoid prosecution for a felony under these circumstances andthat he consequently was not ineligible for SSI payments. Id.at 18-19.
The Appeals Council reviewed this decision on its own motion.Id. at 6. Noting that the plaintiff had satisfied the felonywarrant on May 22, 2003, the day following the administrative lawjudge's decision, id., the Appeals Council held that theclaimant was a fleeing felon under the statute and regulationfrom July 2001 through May 31, 2003, id. at 9. The AppealsCouncil did not "disturb" the commissioner's decision to waiverecovery of benefits paid from July 2001 through March 2002.Id. at 8. Accordingly, at issue in the present appeal are thebenefits for the period from April 2002 through May 2003.Statement of Specific Errors (Docket No. 13) at 3 n. 3.
The Appeals Council held that, as a matter of law, the onlyissue to be decided was "whether nonpayment was appropriate basedon the information obtained from a law enforcement entity," andthat the mere existence of a valid warrant is sufficient to establishthat nonpayment was appropriate. Record at 8. The Appeals Councilrejected the plaintiff's argument that he was entitled to refutethe presumption that he was fleeing prosecution despite theexistence of the warrant. Id.
At oral argument, counsel for the plaintiff conceded that hisargument that the plaintiff could not have been "fleeing"prosecution during the period when he was unaware of theexistence of the warrant has been rendered moot by thecommissioner's decision to pay him benefits for that period. Thefollowing discussion accordingly deals only with the period afterthe plaintiff became aware of the existence of the Floridawarrant.
The Social Security Administration's Program Operations Manual("POMS") states flatly that "[a]s long as a United States warrantor court order is active, SSA considers an individual to be`fleeing' for SSI eligibility determination purposes. This istrue even if the law enforcement agency is unwilling toextradite." POMS § SI 00530.030, 2003 WL 22245598. The FirstCircuit has required the commissioner to comply with POMS. Averyv. Secretary of Health & Human Servs., 797 F.2d 19, 23-24 (1stCir. 1986). The plaintiff relies on a decision of the NinthCircuit to support his argument that POMS has "absolutely noeffect or persuasive force," Statement of Specific Errors at 9,but the law in this circuit is otherwise. This does not resolvethe matter, however, because the plaintiff contends that thisinterpretation of the plain language of the statute and theregulation is wrong. He suggests that an element of intent isinherent in the commonly accepted definition of the word"fleeing," which is not defined in the statute or regulation, andthat the POMS provision impermissibly reads this element out ofthe statutory language. In the alternative, he contends that thecommissioner's position creates an irrebuttable presumption inviolation of the Constitution. Id. at 6-11. It is true, as the plaintiff points out, id. at 10-11, thatconviction of the crime of flight to avoid prosecution requiresevidence of intent. 18 U.S.C. § 1073; Lupino v. United States,268 F.2d 799, 801 (8th Cir. 1959). However, conviction under thatcriminal statute involves the potential deprivation of thedefendant's constitutionally-protected liberty. Here, applicationof the "fleeing felon" statute and regulation at most deprives aclaimant of benefits to which he is not constitutionallyentitled. United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166,174 (1980); Ciccone v. Secretary of Dep't of Health & HumanServs., 861 F.2d 14, 17 (2d Cir. 1988). That is a significantdistinction, making the courts' interpretations of the criminalstatute of little or no value for the issue before this court. Ofmore value here is the First Circuit's statement, in the courseof construing 18 U.S.C. § 3290, which provides in its entiretythat "[n]o statute of limitations shall extend to any personfleeing from justice," that "[t]he essential characteristic offleeing from justice is leaving one's residence, or usual placeof abode or resort, or concealing one's self, with the intent toavoid punishment." Brouse v. United States, 68 F.2d 294, 295(1st Cir. 1933). The First Circuit found an element of intentinherent in that statute, which did not criminalize the flightitself.
In Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,467 U.S. 837 (1984), the Supreme Court established guidelines forreview of a governmental agency's construction of a statute whichit administers.
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Id. at 842-43. If "the legislative delegation to an agency [toelucidate a specific provision of the statute] . . . is implicitrather than explicit," "a court may not substitute its ownconstruction of a statutory provision for a reasonableinterpretation made by the administrator of an agency." Id. at844. In this case, the meaning of the term "fleeing" is notunambiguously expressed in 42 U.S.C. § 1382(e)(4), the delegationof regulatory authority to the commissioner is implicit, and thiscourt must therefore determine whether the commissioner'sinterpretation as set forth in POMS is reasonable.
As the plaintiff notes, Statement of Specific Errors at 6,Black's Law Dictionary defines the term "flee from justice" toinclude an element of intent.2 It is also significantthat section 1382(e)(4) uses the words "fleeing to avoidprosecution" rather than "fleeing while subject to prosecution"or some similar language. "Fleeing to avoid" somethingnecessarily implies an intent to avoid that thing. I agree withthe plaintiff that the commissioner's interpretation of thestatute as set forth in POMS is unreasonable to the extent thatit presumes that the statute applies merely from the existence ofan arrest warrant. I find support for this conclusion in theFirst Circuit's statement in Brouse. In addition, while theAppeals Council was careful in this case not to include languagein its decision that could be construed to hold that itinterprets the statute as requiring a finding of intent, thedecision in Blakely v. Commissioner of Soc. Sec., 2004 WL574532 (W.D. Mich. Mar. 8, 2004), is consistent with myconclusion. I reach the issue which the district court did notreach in that case, but the outcome is the same.
My conclusion that intent is an element of the statutorystandard applicable in this case means both that a claimant musthave an opportunity to establish his lack of intent, as wasprovided in this case, and that remand to the commissioner to consider the evidence of intent isnecessary. It also means that consideration of the plaintiff'salternate, constitutional argument is not required.
At oral argument, counsel for the commissioner contended thatthe recent refusal of Congress to adopt a proposed revision to42 U.S.C. § 1382(e) that would have required the commissioner toobtain certification from the appropriate law enforcementauthority that it intended to pursue the individual for whom awarrant exists before that person could be considered to be"fleeing," see Social Security Administration LegislativeBulletin 108-11 (Nov. 14, 2003) at 4 and Social SecurityAdministration Legislative Bulletin 108-18 (Mar. 4, 2004) at4-5, means that the existing statutory language cannot reasonablybe construed to include an element of intent. I disagree. Theexisting statutory language may still reasonably be interpretedto include an element of intent; whether the issuing lawenforcement agency intends to enforce an existing warrant is anentirely different question. Counsel for the commissioner alsoargued that allowing a recipient of benefits to attempt to provethat he had no intent to flee prosecution would mean that thestatute had "no point," but the individual still has the burdento prove that assertion. If he cannot do so to the commissioner'ssatisfaction, the statute requires that his benefits beterminated. Since counsel for the commissioner conceded that anyrecipient for whom a warrant is issued is entitled to a hearingat which he may attempt to show that the warrant is not valid oractive or that he was a victim of mistaken identity, there islittle additional burden imposed on the commissioner if therecipient is also allowed to try to show that he had no intent toflee. Contrary to the suggestion of counsel for the commissioner,not all of the other evidentiary judgments that must be made byan administrative law judge are totally objective in nature,unlike an evaluation of a recipient's intent. Courts generallydefer to an administrative law judge's analysis of a claimant'scredibility, for example. If, as counsel for the commissionercontended, the commissioner has established "objective standards"for the evaluation of credibility, no reason why she cannot do so as well forevaluation of the intent of a recipient subject to a warrant isreadily apparent.
For the foregoing reasons, I recommend that the commissioner'sdecision be VACATED and the cause REMANDED for furtherproceedings consistent herewith.
1. This action is properly brought under42 U.S.C. § 1383(c)(3). The commissioner has admitted that the plaintiff hasexhausted his administrative remedies. The case is presented as arequest for judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to file an itemizedstatement of the specific errors upon which he seeks reversal ofthe commissioner's decision and to complete and file a fact sheetavailable at the Clerk's Office. Oral argument was held before meon June 21, 2004, pursuant to Local Rule 16.3(a)(2)(C) requiringthe parties to set forth at oral argument their respectivepositions with citations to relevant statutes, regulations, caseauthority and page references to the administrative record.
2. The only other definition offered by the plaintiff, fromthe American Heritage Dictionary, Second College Edition,Statement of Specific Errors at 6, cannot reasonably be construednecessarily to include an element of intent.