Kientz v. Berryhill
Filing
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MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed. Signed by U.S. District Senior Judge Sam A. Crow on 9/21/18. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN KIENTZ,
Plaintiff,
vs.
Case No. 17-4067-SAC
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security that plaintiff’s civil service
pension was not based wholly on service as a member of a
uniformed service.
Therefore, the Commissioner concluded that
the Windfall Elimination Provision (WEP) was properly applied to
the claimant’s Social Security Retirement Insurance Benefits.
I.
Social Security Act and Windfall Elimination Provision (WEP)
From 1978 through 2007, plaintiff worked for the Kansas
Army National Guard as a dual-status National Guard technician
(R. at 13).
The issue before the court is the impact of that
work history in determining plaintiff’s Social Security
retirement benefits.
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The Social Security Act does not distribute social security
benefits as a flat percentage of a recipient’s earnings.
Instead, it adjusts benefits payouts so that individuals with
lower “average indexed monthly earnings” are entitled to a
greater percentage of those earnings than those with higher
earnings.
This allows low-income workers to receive a higher
return on their Social Security contributions than higher-income
workers.
Martin v. Social Security Administration,
Commissioner, ___ F.3d ___, 2018 WL 4262456 at *1 (11th Cir.
Sept. 7, 2018).
Further, not all employment is subject to Social Security
contributions.
The statutory scheme distinguishes between
“covered” and “noncovered” employment.
Covered employment is
subject to Social Security taxes, and associated retirement
benefits are calculated to account for average indexed monthly
earnings in the manner described above.
Noncovered employment
is exempt from Social Security taxes, but many noncovered
positions include a separate annuity or pension.
Id., 2018 WL
4262456 at *1.
These elements of the Social Security plan mean that a
person who worked in both covered and noncovered employment
might doubly benefit.
Such a person might receive a pension or
annuity from a noncovered employer while simultaneously
receiving higher than warranted Social Security benefits since
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the percentage of average indexed monthly earnings to distribute
would be calculated only on the basis of any income from covered
employment.
Id., 2018 WL 4262456 at *1.
The Act’s windfall elimination provision (WEP) helps
eliminate the potential for double-dipping.
It modifies the
default formula to account for an individual who receives
monthly payment “based in whole or in part upon his or her
earnings” for noncovered work.
Such an individual will receive
a smaller percentage of average indexed monthly earnings than he
or she would receive under the standard formula.
Id., 2018 WL
4262456 at *2.
However, there are some exceptions to the WEP.
Relevant in
this case is 42 U.S.C. § 415(a)(7)(A)(iii), which makes an
exception for any “payment based wholly on service as a member
of a uniformed service,” also known as the uniformed services
exception.
Members of a uniformed service includes members of
the Army National Guard.
Id., 2018 WL 4262456 at *2.
The issue before the court is how this statutory scheme
applies to someone, such as the plaintiff in this case, who
served as a National Guard dual status technician.
A dual
status technician is assigned to a civilian position as a
technician, and is consistently referred to as a civilian
employee.
Id., 2018 WL 4262456 at *2.
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II.
Is the calculation of plaintiff’s Social Security
retirement subject to the WEP?
As noted above, plaintiff had dual status as an Army
National Guard technician from August 1978 through August 2007
(R. at 13).
Plaintiff’s work as an Army National Guard
technician under the CSRS retirement system was work that never
required plaintiff to pay into Social Security (R. at 13).
The
only question before the court is whether plaintiff’s civil
service pension (OPM), which is primarily based on his work as
an Army National Guard technician under the CSRS retirement
system, is subject to the WEP.1
In deciding this case, this court is adopting the opinion
and analysis contained in Martin v. Social Security
Administration, Commissioner, ___ F.3d ___, 2018 WL 4262456 (11th
Cir. Sept. 7, 2018).
As noted above, an exception to the WEP
includes “a payment based wholly on service as a member of a
uniformed service.”
As the court found in Martin, plaintiff’s
work as a dual status technician was distinct from his National
Guard service in important ways.
Congress consistently refers
to dual status technician employment as a civilian position.
In the Martin case, the plaintiff acknowledged that he performed
his technician work during the work week for federal civil
1
Plaintiff is also receiving a pension paid by the Defense Finance and Accounting Service for his work in the
Kansas Army National Guard (Plaintiff’s brief at 6); there is no dispute that those payments are not subject to the
WEP.
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service pay, and took up his military position on the weekends
for military pay.
Even the use of the term “dual status”
suggests that dual status technicians are employed not just in
their capacity as members of the National Guard.
Id., 2018 WL
4262456 at *9.
The critical issue is how the word “wholly” interacts with
the nature of the dual status technician position.
The court
agrees with the 11th Circuit in Martin that, by its plain
meaning, “wholly” limits the payments covered by the uniformed
services exception.
Even if dual status technician employment
is essentially military, it is not subject to the uniformed
services exception if it is not “wholly” military in nature.
Id., 2018 WL 4262456 at *9.
The legislative history does not show that Congress
intended to exclude dual status technicians from the WEP.
Furthermore, Congress consistently emphasized that part of even
a dual status technician’s work would be civilian employment.
Id., 2018 WL 4262456 at *11.
The plaintiff in the case before
this court, as was true with the plaintiff in Martin, did not
perform his dual status technician employment wholly as a member
of the uniformed services.
As a result, payments based on that
employment do not qualify for the exception.
The court would note that in the case of Petersen v.
Astrue, 633 F.3d 633 (8th Cir. 2011), the court held that a dual
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status technician performed his work as a member of the National
Guard, and therefore the plaintiff’s social security benefits is
not subject to the WEP.
The court in Petersen emphasized that
Petersen was required to maintain his membership in the National
Guard and was required to wear his uniform.
633 F.3d at 637.
However, this court agrees with the court’s analysis in Martin
that given the dual nature of the role and the civilian elements
discussed above, this court does not agree that the employment
is performed wholly as a member of a uniformed service.
This
court holds that the uniformed services exception does not apply
in plaintiff’s case.
Id., 2018 WL 4262456 at *11.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed.
Dated this 21st day of September 2018, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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