WEP, Civil Service, Military Pension -- Larson v. Saul with a side of Kaufmann v. Kijakazi

The Ninth Circuit did not issue many published decisions during Andrew Saul's tenure. A year into the position, we get to the second.

Larson v. Saul, 967 F.3d 914 (9th Cir. 2020) - does the uniformed services exception to the Windfall Elimination Provision ("WEP") of 42 U.S.C. § 415(a)(7) apply to the Civil Service Retirement System ("CSRS") pensions of dual-status technicians of the National Guard? Background, military service members get a military pension and accrue credits for Social Security for the same years of service. Civil servants do not, they are subject to the WEP. Larson joined the Sixth, Tenth, and Eleventh Circuits and held that the exemption does not apply, the CSRS impacts the SS retirement benefit. Babcock v. Comm'r of Social Sec., 959 F.3d 210 (6th Cir. 2020), Kientz v. Comm'r, SSA, 954 F.3d 1277 (10th Cir. 2020), Martin v. Social Sec. Admin., Comm'r, 903 F.3d 1154 (11th Cir. 2018). The Supreme Court reviewed Babcock. Babcock v. Kijakazi, 142 S.Ct. 641 (2022) held that civil-service pension payments based on employment as a dual-status military technician are not payments based on "service as a member of a uniformed service" under 42 U.S.C. § 415(a)(7)(A)(III).

When four different panels in four different circuits go the same way, it is an uphill battle. The Eighth Circuit held that the WEP exception applied. Petersen v. Astrue, 633 F.3d 633, 637-638 (8th Cir. 2011). Justice Gorsuch in dissent would have found that the exception did apply because of the unique nature of the service by guardsmen wearing the uniform while in a civil service position. 

Rant mode on.

I take this opportunity to note a pet peeve of mine, an ongoing battle with one district court. First, the defendant, appellee, or respondent is not the Commissioner of the Social Security Administration. The named party is the Commissioner of Social Security. The statute uses Commissioner of Social Security 162 times in 42 U.S.C. § 405 and not once refers to the Commissioner of the Social Security Administration. Second, 42 U.S.C. § 405(g) describes the survival of the civil action notwithstanding any change in the person occupying the office of Commissioner of Social Security or any vacancy. As the Supreme Court does, name the person in the office in that person’s official capacity as designated in the statute.

Finally, there is not now and there will not be a Commissioner of Social Security until Congress amends the statute to make the person in that office subject to service at the discretion of the President. The unconstitutional “for cause” protection of an agency head needs to exit the statutory scheme. Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022).

Rant mode off. 

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Suggested Citation:

Lawrence Rohlfing, WEP, Civil Service, Military Pension -- Larson v. Saul with a side of Kaufmann v. Kijakazi, California Social Security Attorney (March 29, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.