United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
J. QUIST, UNITED STATES DISTRICT JUDGE.
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).
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.
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.
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.
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.)
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 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.
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.
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 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
IS FURTHER ORDERED that the Commissioner's
decision is AFFIRMED.