Babcock v. Commissioner of Social Security
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION 20 affirming Commissioner's decision; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID BABCOCK,
Plaintiff,
Case No. 1:18-CV-255
v.
HON. GORDON J. QUIST
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff, a retiree from the Michigan National Guard, filed a complaint pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of the Commissioner of Social Security’s final review of Plaintiff’s
challenge to the Commissioner’s calculation of Plaintiff’s retirement benefits under Title II of the
Social Security Act. Plaintiff was employed from 1975 until 2009 as a National Guard dual status
technician. On September 30, 2014, Plaintiff applied for retirement insurance benefits. At that time,
Plaintiff was receiving a federal pension based on noncovered employment—that is, employment
that was exempt from Social Security taxes. See Martin v. Soc. Sec. Admin., Comm’r, 903 F.3d
1154, 1156 (11th Cir. 2018). In most situations, individuals who, like Plaintiff, receive a pension
from noncovered work receive a reduced monthly retirement insurance benefit pursuant to the Social
Security Act’s windfall elimination provision (WEP), 42 U.S.C. § 415(a)(7)(A). “[|T]he WEP was
enacted to eliminate a windfall to individuals . . . who are eligible to receive pensions based on both
covered and noncovered employment.” Holmes v. Comm’r, No. 96-4088, 1997 WL 570387, at *2
(6th Cir. Sept. 11, 1997). There are a number of exceptions to the WEP, and Plaintiff claimed that
he fell within the exception for “a payment based wholly on service as a member of a uniformed
service” (the “uniformed services exception”). 42 U.S.C. § 415(a)(7)(A)(III).
At the time Plaintiff applied for retirement benefits, only the Eighth Circuit had addressed
whether the uniformed services exception applies to dual status technicians such as Plaintiff. In
Peterson v. Astrue, 633 F.3d 633 (8th Cir. 2011), the court found the meaning of the uniformed
services exception “clear and unambiguous” and concluded that a National Guard dual status
technician is covered by the uniformed services exception. The court reached this decision
notwithstanding that under the National Guard Technician Act, Pub. L. No. 90-486, § 2(1), 82 Stat.
755, 755–56, codified as 32 U.S.C. § 709, a dual status technician is defined as a “Federal civilian
employee” who “is assigned to a civilian position as a technician in the organizing, administering,
instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or
equipment issued to the Selected Reserve or the armed forces.” 10 U.S.C. § 10216(a)(1)(C). The
court reasoned that because a dual status technician must maintain his or her membership in the
National Guard and the military grade for his or her position and is required by statute to wear the
grade-appropriate uniform while on duty, a dual status technician performs work “as a member of
a uniformed service.” Id. at 637.
Following Peterson, the Social Security Administration (SSA) issued Acquiescence Ruling
12-1(8) (AR 12-1(8)), 77 Fed. Reg. 51842-01 (Aug. 27, 2012), correction published 77 Fed. Reg.
54646-01 (Sept. 5, 2012), effective August 27, 2012. AR 12-1(8) explains that the SSA will apply
Peterson only to eligible Social Security old-age or disability applicants (dual status technicians)
who are permanent residents of a State within the Eighth Circuit. AR 12-1(8) further explains that
for all applicants outside of the Eighth Circuit, the SSA will adhere to its policy that the WEP
applies to persons who were employed in a noncovered civilian capacity as a National Guard dual
status technician.
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On September 7, 2018, after Plaintiff filed his complaint in this case, the Eleventh Circuit
issued its decision in Martin v. Social Security Administration, Commissioner, 903 F.3d 1154 (11th
Cir. 2018), which disagreed with Peterson and held that National Guard dual status technicians are
not covered by the uniformed services exception. The court, focusing on the word “wholly” in the
exception, found the SSA’s interpretation most persuasive:
The critical issue is . . . how the word “wholly” interacts with the nature of
the dual status technician position. By its plain meaning, “wholly” limits the
payments covered by the uniformed services exception: even if dual status technician
is essentially military, it is not subject to the uniformed services exception if it is not
wholly military in nature. Accounting for all of the features of the dual status
technician role, we find it difficult to conclude that a dual status technician wholly
performs that role as a member of the National Guard.
Id. at 1166. Among other things, the court observed that dual status technicians perform much of
their work as federal civilian employees. Id. a 1165.
On December 4, 2018, Magistrate Judge Phillip Green issued a Report and Recommendation
(R & R) recommending that the Court affirm the Commissioner’s decision applying the WEP to
Plaintiff’s retirement benefits. (ECF No. 20.) The magistrate judge noted the different outcomes
in Peterson and Martin, found that “Martin provides a more detailed and persuasive analysis of why
the WEP exception does not apply,” and recommended that this Court adopt the Martin analysis.
(Id. at PageID.281.) In addition, the magistrate judge recommended that the Court reject Plaintiff’s
argument that application of AR 12-1(8) violates Plaintiff’s due process and equal protection rights.
(Id. at PageID.283–84.)
Plaintiff has filed Objections to the R & R (ECF No. 21), and the Commissioner has filed
a response. (ECF No. 22.) Pursuant to 28 U.S.C. § 636(b), upon receiving objections to a report
and recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
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conducting a de novo review of the R & R, Plaintiff’s Objections, the Commissioner’s response, and
the pertinent portions of the record, the Court concludes that the R & R should be adopted and the
Commissioner’s decision affirmed.
First, as to whether Plaintiff falls within the uniformed services exception to the WEP, the
Court has reviewed Peterson and Martin and concurs with the magistrate judge that Martin’s
analysis—particularly its focus on the word “wholly” as requiring that all of the claimant’s
employment must have been military in nature—is not only more persuasive than the Peterson
court’s analysis, but at bottom is based on the correct application of the language of the exception.
At least two other district courts have likewise found Martin more persuasive than Peterson. See
Newton v. Comm’r of Soc. Sec., No. 18-751(RMB), 2019 WL 1417248, at *4 (D. N.J. Mar. 29,
2019) (“This Court agrees with the reasoning of the Eleventh Circuit [in Martin].”); Kientz v.
Berryhill, No. 17-4067-SAC, 2018 WL 4538480, at *2 (D. Kan. Sept. 21, 2018) (adopting the
opinion and analysis in Martin). Accordingly, the Commissioner properly applied the WEP.
With regard to Plaintiff’s constitutional claims, the Court concurs with the magistrate judge
that they lack merit. As the magistrate judge correctly observed, the Commissioner did not apply
AR 12-1(8) to Plaintiff. (ECF No. 9-2 at PageID.42.) Plaintiff fails to cite any case that supports
such a claim. While it is true that a circuit split did not exist at the time Plaintiff filed his complaint
in this case, the SSA was not precluded from taking a different position outside of the Eighth
Circuit. See Roberts v. Holder, 745 F.3d 928, 933–34 (8th Cir. 2014) (“Disagreements among the
courts of appeal, or between an agency and one or more of the courts of appeal, will not by itself
create an equal protection violation.”). In short, the magistrate judge’s observation that “[t]he
Peterson and Martin decisions provide a good illustration why the initial circuit to address an issue
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does not compel the Commissioner to accede to that determination in every other circuit,” was
entirely apt.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued December 4, 2018 (ECF No. 20) is APPROVED AND ADOPTED as the Opinion of this
Court. Plaintiff’s Objection (ECF No. 21) is OVERRULED.
IT IS FURTHER ORDERED that the Commissioner’s decision is AFFIRMED.
A separate judgment will issue.
This case is concluded.
Dated: May 22, 2019
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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