SSR 84-23: SECTION 1631(b) (42 U.S.C. 1383(b)) SUPPLEMENTAL SECURITY INCOME -- OVERPAYMENT -- ADJUSTMENT OR RECOVERY -- RECIPIENT CONVICTED OF CRIMINAL CHARGES

20 CFR 416.535 and 416.570

SSR 84-23

The claimant was indicted on February 14, 1983, for violations of 18

U.S.C. section 1341 (mail fraud) and 18 U.S.C. section 1001 (fraud and

false statements to a Federal agency) in connection with her applications

for and receipt of SSI payments under an assumed name. On May 31, 1983,

the claimant pleaded guilty to a single count of mail fraud (18 U.S.C.

section 1341); the five other counts of the indictment were then

dismissed. She was sentenced to one year in prison. However, after the

claimant was confined in a community treatment center for 30 days, the

remainder of her sentence was suspended and she was placed on probation

for three years. The claimant was also ordered to make restitution of

$486.00 -- although her SSI overpayment totaled $34,441.20 -- and to

perform one hundred hours of community service work during each year of

the probationary period.

Recently, the claimant contacted her local Social Security office and

requested reinstatement of her SSI payments. This raises the question as

to whether the dismissal of five or six criminal charges in the February

14, 1983, indictment precludes SSA from recouping the outstanding

overpayment balance of $33,955.20 from future SSI payments.

The claimant's civil liability for SSI overpayments was not at issue in

the criminal proceedings which terminated with the Federal district court

order of May 31, 1983. That order only disposed of the criminal charges

enumerated in the indictment. The order has no effect on civil remedies

available to SSA. The Fifth Amendment prohibition against double jeopardy

applies only to successive criminal proceedings. U.S. v.

Lasky , 600 F.2d 765 (9th Cir. 1979). It is well established that a

criminal penalty and a subsequent civil remedy may be exacted for a single

act. United States ex rel. Marcus v. Hess , 317 U.S. 537, 63 S.Ct.

379 (1943); Berdick v. U.S. , 612 F.2d 533 (Ct. Cl

vailable to SSA. The Fifth Amendment prohibition against double jeopardy

applies only to successive criminal proceedings. U.S. v.

Lasky , 600 F.2d 765 (9th Cir. 1979). It is well established that a

criminal penalty and a subsequent civil remedy may be exacted for a single

act. United States ex rel. Marcus v. Hess , 317 U.S. 537, 63 S.Ct.

379 (1943); Berdick v. U.S. , 612 F.2d 533 (Ct. Cl. 1979)

(Government civil counterclaim under False Claims Act (31 U.S.C. §§

231-35) against plaintiff previously convicted under 18 U.S.C. section

1001 not barred by double jeopardy provisions of Fifth Amendment). Here,

SSA's claim for recovery of the overpayment is based on the provisions of

section 1631(b) of the Social Security Act. The civil authority to obtain

repayment is distinct from and altogether unrelated to the criminal

sanctions of 18 U.S.C. sections 1001 and 1341.

Accordingly, the disposition of the criminal case against the claimant

does not preclude SSA from recouping the overpayment balance, if the

statutory and regulatory prerequisites for recoupment are present.