Linza v. Colvin
Filing
30
DECISION AND ORDER granting 24 Plaintiff's Motion for Judgment on the Pleadings; denying 25 Commissioner's Motion for Judgment on the Pleadings. The case is remanded to the Commissioner for further proceedings consistent with this Decision and Order. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 7/1/2019. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
STEPHEN LINZA,
Plaintiff,
1:15-CV-00567(MAT)
DECISION AND ORDER
-vANDREW SAUL,
Commissioner of Social Security1,
Defendant.
____________________________________
INTRODUCTION
Stephen Linza (“Plaintiff”), represented by counsel, brings
this
action
seeking
Commissioner
of
review
Social
of
the
Security
final
(“the
decision
of
the
Commissioner”
or
“Defendant”), declaring that Defendant improperly applied 42 U.S.C.
§ 415(a)(7), also known as the Windfall Elimination Provision
(“WEP”),
to
his
social
security
retirement
benefits,
reducing the amount of his social security payment.
thereby
Docket No. 1.
The Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 405(g).
Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal
Rules
of
Civil
Procedure
responses (Docket No. 26, 27, 29).
below,
the
Court
concludes
that
(Docket
Nos.
24,
25),
and
For the reasons set forth
the
Commissioner
erred
in
determining that Plaintiff, as a dual-status technician in the
1
As of the date of this Decision and Order, Carolyn W. Colvin, the Defendant
named by Plaintiff in this matter, is no longer the Acting Commissioner of Social
Security.
Andrew Saul was sworn in as Commissioner of Social Security on
June 17, 2019. Therefore, the Clerk of Court is instructed to substitute “Andrew
Saul, Commissioner of Social Security” as the Defendant, in accordance with Fed.
R. Civ. P. 25(d).
National Guard, was subject to the WEP.
Accordingly, the decision
of the Commissioner is reversed.
BACKGROUND
The material facts in the case do not appear to be in dispute.
Plaintiff served as a “dual status” technician in New York’s Air
National Guard (the “National Guard”).
T. 9-10, 73.
At his
administrative hearing, Plaintiff testified that he began working
as an aircraft mechanic for the 107th Fighter Inceptor Group of the
National Guard in 1977.
T. 75, 76.
In order to hold that
position, Plaintiff was required to join the National Guard and
perform active duty each year.
T. 76.
In addition to attending
weekend drills in uniform once per month, and two weeks of active
duty
annually,
Plaintiff
was
required
ordered, based on military needs.
Id.
to
travel
abroad
when
Specifically, Plaintiff
testified, “they would make you go to whatever - wherever they
needed you, they would ask you if you would go and then you would I’ve been to Guam, I’ve been to France, Italy.”
T. 77. Plaintiff
further testified, “sooner or later, push would come to shove but
they’ll ask you would you be interested in going because we - with
the air refueling mission, they needed bodies and the guys would
alternate on and off to take all [of the] trips. . . .”
T. 77-78.
The missions for duty outside of the United States could
number four to five per year. Plaintiff testified, “[o]h, God.
In
my 30-year period, I had maybe four or five a year, something like
that.
There’s some guys that . . . do even more than that.”
-2-
T. 78.
The amount of time each mission would take varied.
Plaintiff
“depend[].
testified
that
the
length
of
these
missions
would
If it was a two-week fighter haul, you’d drag fighters
to a country and then drop them off, refuel and go back the next
day but sometimes it could be 50, 60 days or even more.”
Plaintiff
also
testified
that
throughout
his
T. 78.
military
training, whether at his home base, or on an overseas assignment,
he wore a military uniform and that overseas assignments were
considered active duty.
T. 81.
Specifically, Plaintiff stated,
“[a]nything out of the United States would be active duty unless,
like New York City with . . . 911, they put you on active duty for
as long as it takes to get the job done and when they [say] you can
go home, they bring more people in to take care of that.”
Id.
Throughout his tenure in the National Guard, Plaintiff was
required to maintain military physical standards, including passing
a PT test, and by keeping a military shave and haircut, as required
by military regulations.
military discipline.
Id.
T. 82.
rank of E7, Master Sergeant.
Plaintiff also was subject to
Plaintiff eventually achieved the
Id.
Plaintiff retired in 2008, and
received both a civil service and military pension.
Id.
PROCEDURAL HISTORY
On April 5, 2011, Plaintiff applied for retirement insurance
benefits.
T. 15-16.
Defendant found that Plaintiff was entitled
to benefits beginning in August 2011.
-3-
T. 17-19.
On August 11, 2011, Defendant notified Plaintiff that it was
reducing his monthly benefit amount due to his receipt of a pension
based on work not covered by the Act.
2012,
Plaintiff
calculation.
requested
T. 22.
T. 20-21.
reconsideration
On December 28,
of
his
benefits
On April 29, 2013, after reconsideration,
Defendant determined that the computation of Plaintiff’s benefits
was correct.
T. 29-31.
Plaintiff requested a hearing before an
administrative law judge (ALJ); on October 24, 2013, Plaintiff,
with his attorney, appeared before ALJ Donald T. McDougal1. T. 6985.
The ALJ issued an unfavorable decision on December 27, 2013.
T. 6-11.
Plaintiff requested review by the Appeals Council; on
April 21, 2015, the Appeals Council denied Plaintiff’s request,
making the ALJ’s determination the Commissioner’s final decision.
T. 2-5.
Plaintiff filed his motion for judgment on the pleadings on
March 23, 2017 (Docket No. 24), and Defendant filed its motion for
judgment on the pleadings on April 24, 2017 (Docket No. 25).
Plaintiff filed his response on May 8, 2017.
Docket No. 26.
On
December 17, 2018, and May 22, 2019, Defendant filed notices of
supplemental authority addressing issues raised in the parties’
original
motion
papers.
Docket
No.
27,
29.
transferred to the undersigned on May 3, 2019.
The
case
was
Docket No. 28.
THE ALJ’S DECISION
The ALJ found that Acquiescence Ruling, AR 12-X(8), was
controlling in Plaintiff’s case.
T. 10.
The ALJ explained that AR
12-X(8) states “that we only ignore retirement pay from military
-4-
service, including a Reserve component, and not National Guard
employment.” Id. The ALJ further clarified that AR 12-X(8), “(and
thus the benefit of Peterson v. Astrue) applies only to permanent
legal residents
in
a
state
within
the Eighth
Circuit,
i.e.,
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and
South Dakota.”
Id. (emphasis added).
In other words, because
Plaintiff resides in New York, AR 12-X(8) did not apply to him.
Accordingly, the ALJ found that Plaintiff’s retirement benefits
were correctly reduced as required by the WEP.
T. 11.
DISCUSSION
I.
Scope of Review
“A court reviewing a final decision by the Commissioner ‘is
limited to determining whether the [Commissioner’s] conclusions
were supported by substantial evidence in the record and were based
on a correct legal standard.’”
Tipadis v. Commissioner, 284 F.
Supp. 3d 517, 521 (S.D.N.Y. 2018) (quoting Selian v. Astrue, 708
F.3d 409, 417 (2d Cir. 2013)); see also Sambataro v. Commissioner,
No. 13-cv-8953(KBF), 2015 WL 1539046, at *5 (S.D.N.Y. Apr. 6, 2015)
(“The Court may only consider whether the ALJ has applied the
correct legal
standard
and
whether
his
findings of
fact are
supported by substantial evidence.
When these two conditions are
met,
is
the
Commissioner’s
decision
fina1.”).
“Substantial
evidence means ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support
-5-
a conclusion.’”
Id. (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d
Cir. 1996)).
II.
Analysis
The
question
before
the
Court
is
whether
the
Uniformed
Services exception to the WEP applies to dual-status technicians in
the National Guard.
A.
The WEP and the Uniformed Services Exception
“Congress enacted the WEP in 1983 ‘to eliminate the unintended
“double dipping” that accrued to workers who split their careers
between employment taxed for Social Security benefits (“covered”)
and employment exempt from Social Security taxes (“noncovered”).’”
Newton v. Commissioner, No. 18-751(RMB), 2019 WL 1417248, at *2
(D.N.J. Mar. 29, 2019) (quoting Stroup v. Barnhart, 327 F.3d 1258,
1259-60 (11th Cir. 2003)).
As explained by the Second Circuit
Court of Appeals in Rudykoff v. Apfel:
The WEP was enacted to eliminate the unintended benefits
windfall that accrued to workers who split their career
between employment in which their earnings were taxed for
social security and other employment, such as federal
employment, in which their earnings were exempt from
social security taxes. An employment history of this
nature gave the appearance of low lifetime earnings for
the purposes of calculating social security benefits,
thus resulting in a relatively high payment under the
SSA’s weighted formula that did not take into account the
individual’s receipt of a federal pension. As Congress
recognized in creating the WEP, “[f]ederal . . . civil
service pensions . . . are generally designed to take the
place both of social security and a private pension plan
for workers who remain in [federal] employment throughout
their careers.” Without the WEP, therefore, a federal
employee with a civil service pension who worked for a
brief period in the private sector would be eligible for
a “total retirement pension income [that would] most
-6-
likely greatly exceed that of a worker with similar
earnings all under social security.”
193 F.3d 579, 580-81 (2d Cir. 1999) (citations omitted).
As a dual-status technician in New York’s Air National Guard,
Plaintiff’s employment was considered to be “dual status,” i.e.,
both civil and military.
Upon retirement, he received three
payments, including a civilian pension and a military pension, both
of which were based on his service in the National Guard, as well
as social security retirement benefits.
See Docket No. 24-1 at 4.
The Social Security Administration therefore applied the WEP in
calculating Plaintiff’s social security benefits.
There are statutory exceptions to application of the WEP, and
“[a]t issue in this case is the ‘uniformed services’ exception to
the WEP.”
Newton, 2019 WL 1417248, at *3.
The Uniformed Services
exception states, in relevant part:
(7)(A) In the case of an individual whose primary
insurance amount would be computed under paragraph (1) of
this subsection, who —
(i) attains age 62 after 1985 (except where he or she
became entitled to a disability insurance benefit before
1986 and remained so entitled in any of the 12 months
immediately preceding his or her attainment of age 62),
or
(ii) would attain age 62 after 1985 and becomes eligible
for a disability insurance benefit after 1985,
and who first becomes eligible after 1985 for a monthly
periodic payment ( . . . but excluding . . . (III) a
payment based wholly on service as a member of a
uniformed service (as defined in section 410(m) of this
title)) which is based in whole or in part upon his or
her earnings for service which did not constitute . . .
[covered employment], the primary insurance amount of
that individual during his or her concurrent entitlement
-7-
to such monthly period payment and to old-age
disability insurance benefits shall be computed
recomputed under subparagraph (B).
or
or
Martin v. SSA, 903 F.3d 1154, 1163 (11th Cir. 2018) (emphasis in
original); 42 U.S.C. § 415(a)(7)(A)(ii)(III).
Thus, the WEP “is
not meant to be used to reduce retirement benefits on the basis of
‘a monthly periodic payment . . . based wholly on service as a
member of a uniformed service.’”
Newton, 2019 WL 1417248, at *3
(quoting 42 U.S.C. § 415(a)(7)(A)(ii)(III)).
It is unsettled whether the Uniformed Services exception
applies to dual-status technicians in the National Guard, and
“[c]urrently, there is a Circuit split on this issue, with the
Eighth
Circuit
applying
the
exception
for
DSTs
[dual-status
technicians], and the Eleventh Circuit holding that the exception
does not apply to DSTs.”
Newton, 2019 WL 1417248, at *3.
For the
reasons explained below, the Court agrees with the Eighth Circuit’s
finding in Petersen v. Astrue that “Section 415(a)(7)(A) only
requires that the service be as a member of the uniformed service,”
and therefore, the WEP exception applies to dual-status technicians
in the National Guard, such as Plaintiff.
See Petersen, 633 F.3d
633, 637 (8th Cir. 2011).
B.
The Parties’ Positions
Plaintiff argues that the Court should apply the holding of
Petersen (see Docket No. 24-1 at 6-7), in which the Eighth Circuit
found no ambiguity in the WEP exception, and concluded that “[d]ue
to these unique National Guard technician requirements imposed upon
-8-
him, we agree with the district court that Petersen performed his
work ‘as a member of’ the Nebraska Air National Guard.”
637-38.
As
a
result,
the
Court
concluded
that
Id. at
dual-status
technicians fell under the WEP’s Uniformed Services exception. Id.
In response, Defendant contends that Petersen was incorrectly
decided, and is not binding on courts within the Second Circuit.
Docket No. 25-1 at 22.
Defendant further argues that Petersen
failed to consider whether a dual-status technician’s service is
based “wholly on service as” a member of the National Guard, which
is what is required by the WEP exception.
Id. at 23-24.
Defendant
also contends that the Petersen court “focused solely on the dayto-day
requirements
technician,”
and
imposed
ignored
on
the
a
fact
dual
that
status
National
Guard
the
technicians
are
considered federal civilian employees, who earn Civil Service
pensions.
Id. at 23.
Defendant cites four specific cases supporting its position.
These include Martin v. Berryhill, decided by the U.S. District
Court for the Northern District of Alabama; Larson v. Berryhill,
decided by the U.S. District Court for the District of Montana;
Kientz v. Berryhill, decided by the U.S. District Court for the
District of Kansas; and Newton v. Commissioner, decided by the U.S.
District Court for the District of New Jersey.
Docket Nos. 27, 29.
Id. at 22; see also
On September 7, 2018, the Eleventh Circuit
affirmed the Martin decision.
See Martin, 903 F.3d 1154.
-9-
In May
2019, in Babcock v. Commissioner, the United States District Court
for the Western District of Michigan weighed in on the issue,
agreeing with the Eleventh Circuit’s decision in Martin that the
uniformed
services
exception
does
not
apply
to
dual-status
technicians. See Babcock v. Commissioner, No. 1:18-CV-255, 2019 WL
2205712, at *2 (W.D. Mich. May 22, 2019).2
Neither of the parties
have cited to any controlling precedent from within the Second
Circuit Court of Appeals addressing this issue, nor has the Court
identified any such controlling precedent.
C.
The Plain Language of Section 415(a)(7)(5) Applies to
Dual-Status Technicians
“As in all statutory construction cases, we begin with the
language of the statute.
The first step is to determine whether
the language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.
[U]nless otherwise
defined, statutory words will be interpreted as taking their
ordinary, contemporary, common meaning.
When the language of a
statute is unambiguous, judicial inquiry is complete.”
U.S. v.
American Society of Composers, Authors, and Publishers, 627 F.3d
64, 72 (2d Cir. 2010) (internal quotations and citations omitted)
(alteration in original).
The Court agrees with the Eighth Circuit in Peterson that “the
meaning
and
intent
of
section
415(a)(7)(A)
is
clear
and
unambiguous,” and “therefore, it is unnecessary . . . to defer to
2
Newton, Kientz, and Babcock are presently on appeal before the Third,
Tenth, and Sixth Circuits, respectively.
-10-
the SSA’s interpretation of the statute.”
636.
Peterson, 633 F.3d at
Specifically, “the plain language of the statute makes it
abundantly
clear
that
the
exception
applies
to
performed as a member of a uniformed service.”
all
service
Id. at 637
(emphasis added).
In its brief, Defendant argues that “the plain language of the
WEP statute does not support the proposition that a DSTech’s Civil
Service pension payments are wholly based on service as a member of
the National Guard.” Docket No. 24-1 at 25. Defendant essentially
contends that Plaintiff served in two separate capacities; one as
a civilian technician, and the other as a member of the National
Guard.
Id. (“the requirements of the position do not overcome the
inherent bifurcated nature of the DSTech position.”).
Pursuant to the Air Guard Technician Act of 1968, National
Guard technicians were given a “dual status” role, meaning:
Federal civilian employee[s] who . . . [are] required as
a condition of that employment to maintain membership in
the Selected Reserve; and [are] 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.
Petersen,
633
F.3d
at
636-37
(quoting
10
U.S.C.
§ 10216(a)(1)(B)-(C)) (alterations in original).
The Court recognizes that dual-status technicians are referred
to as civilian employees.
See 10 U.S.C. § 10216(1) and (2) (“a
military technician (dual status) is a Federal civilian employee”,
“is assigned to a civilian position”, and “shall be authorized and
-11-
accounted for as a separate category of civilian employees.”).
However, the record before the Court conflicts with Defendant’s
interpretation of Plaintiff’s duties as “bifurcated.” Based on the
requirements
of
his
dual-status
technician
position
and
his
testimony, Plaintiff did not serve in two positions, one as a
member
of
the
technician.
National
Guard,
and
the
other
as
a
civilian
Rather, he served as a member of the National Guard
with special technical capabilities.
Plaintiff clearly testified
to what his duties consisted of, including working on technical
aspects
of
military
aircrafts
and
extensive
requirements, including overseas deployment.
Section,
supra.
In
other
words,
active
duty
See “Background”
because
of
his
technical
background, Plaintiff served as an on-call member of the National
Guard from 1977 through 2008, when he retired.
The Uniformed Services exception does not specifically exclude
individuals
working
in
such
a
capacity.
Indeed,
in
today’s
military, the advanced technical abilities required of its members
is
an
important
ingredient
in
military
particular case, military aircraft.
armament
-
in
this
This fact is underscored by
Plaintiff’s testimony that his skills, and the skills of his
colleagues, were in-demand overseas.
Accordingly, as explained in
Petersen:
We do not agree with the SSA’s approach that because
Petersen was a “dual status” employee, his work as a
National Guard technician was not work performed “as a
member of the uniformed services.” . . . Under the WEP’s
exception, if Petersen is receiving a pension that is
“based wholly on service as a member of a uniformed
service (as defined in [42 U.S.C. § 410(m)]),” that
-12-
person’s social security benefit is not subject to WEP’s
modified formula.
Section 415(a)(7)(A) only requires
that the service be as a member of the uniformed service.
Petersen’s pension meets the limited requirements of the
statute. . . .
Due to these unique National Guard
technician requirements imposed upon him, we agree . . .
that Petersen performed his work ‘as a member of’ the .
. . Air National Guard.
Petersen, 633 F.3d at 637.
Given
his
membership
in
the
National
Guard
and
the
requirements of his position, the Court finds that Plaintiff
conforms to all of the requirements of the Uniformed Services
exception, and his pension meets the limited requirements of the
statute.
See
Petersen,
633
F.3d
at
637
(“Under
the
WEP’s
exception, if Petersen is receiving a pension that is ‘based wholly
on service as a member of the uniformed service . . .’, that
person’s social security benefit is not subject to WEP’s modified
formula. Section 415(a)(7)(A) only requires that the service be as
a member of the uniformed service.
Petersen’s pension meets the
limited requirements of the statute.”).
The term “member of a uniformed service,” as defined by the
Uniformed Services exception to the WEP, unequivocally includes
members
of
the
National
Guard.
See
42
U.S.C.
§
415
(a)(7)(A)(ii)(III) (defining a “member of the uniformed service,”
in accordance with section 410(m), which includes any person
“appointed, enlisted, or inducted in a component of the Army, Navy,
Air Force, Marine Corps, or Coast Guard,” including a reserve
component).
Plaintiff’s hearing testimony makes clear that he did
more than simply serve as a member of the National Guard.
-13-
His
designation as a dual-status technician required him to perform his
duties utilizing his technical capabilities under the control and
authority of the National Guard - and most importantly, where and
when needed.
Plaintiff’s well-earned pension payments resulted
from applying his technical expertise for the service of, and at
the direction of, the National Guard.
As
maintain
a
dual-status
membership
in
technician,
the
Plaintiff
National
Guard,
was
wear
required
the
to
uniform
appropriate for his rank, maintain the military grade for his
position, maintain physical standards, perform active duty, and was
subject to military discipline. See Docket No. 24-1 at 7; see also
10 U.S.C. § 10216; Petersen, 633 F.3d at 637-38.
Defendant does
not dispute that these requirements were met in the instant case.
See Docket No. 25-1 at 7. These membership requirements underscore
the
essential
and
technical
military
expertise
dual-status
technicians contribute to the military mission of their employment.
These individuals should not be penalized simply because their
technical skills serve multiple functions.
See Petersen, 633 F.3d
at 637 (“The SSA’s request that this court read a ‘military duty’
requirement into the statute is rejected.”).
In sum, the Court concludes that the WEP’s uniformed services
exception is clear and unambiguous.
The Court adopts the analysis
employed by the Eighth Circuit in Petersen in concluding that the
Uniformed Services exception “applies to all service performed as
a member of a uniformed service,” and that dual-status technicians
perform their work as members of the National Guard. Petersen, 633
-14-
F.3d
at
637
Petersen,
(emphasis
Plaintiff’s
added).
pensions
Similar
are
to
derived
the
Plaintiff
wholly
from
in
his
“Uniformed Service,” and there is no dispute that Plaintiff’s
position
as
a
dual-status
technician
in
the
National
qualified him as member of the “Uniformed Service.”
Plaintiff’s
employment
falls
within
the
Guard
Accordingly,
Uniformed
Services
exception to the WEP.
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision must be reversed. Accordingly, Plaintiff’s
motion for judgment on the pleadings (Docket No. 24) is granted,
Defendant’s motion for judgment on the pleadings (Docket No. 25) is
denied.
The case is remanded to the Commissioner for further
proceedings consistent with this Decision and Order.
The Clerk of
Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
Honorable MICHAEL A. TELESCA
United States District Judge
Dated:
July 1, 2019
Rochester, New York
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