United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
KRISTINE G. BAKER, District Judge.
Before the Court is defendants' motion to dismiss plaintiffs' amended consolidated complaint (Dkt. No. 23). Plaintiffs have responded in opposition (Dkt. No. 25), and defendants have replied (Dkt. No. 26). Defendants move to dismiss plaintiffs' amended consolidated complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Court held a hearing on the pending motion, and defendants filed a notice of supplemental authority after that hearing (Dkt. No. 31).
Plaintiffs are retired members of the Air National Guard who were also employed as civilian military technicians for 20 years or more and who became entitled to receive Social Security retirement or disability benefits after 1985 and before February 3, 2011. Plaintiffs are all permanent residents within the jurisdiction of the Eighth Circuit Court of Appeals. Plaintiffs bring this suit against the Social Security Administration ("SSA") and Carolyn W. Colvin, Acting Commissioner of the SSA, claiming they are entitled to a pension accrued for their service as technicians of the Air National Guard without the Windfall Elimination Provisions ("WEP") of 42 U.S.C. § 415 applied.
Plaintiffs rely on Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011), to claim that the WEP does not apply to the class of dual-status Air National Guard technicians before the Court because of the plain language of an exception stated in 42 U.S.C. § 410(m) and § 415(a)(7)(A). Plaintiffs have all had the WEP applied to their benefits. Plaintiffs claim that, under Petersen, they are entitled to benefits, past and future, that they would have received if the WEP had not been applied to their benefits. Plaintiffs further claim that defendants' refusal to pay these benefits to plaintiffs and the class of similarly situated persons constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Due Process Clause of the Fifth Amendment to the United States Constitution.
Having considered the parties' filings, the authorities cited, and the arguments made at the hearing, the Court now grants the defendants' motion to dismiss.
I. Factual Background
Accepting the allegations in the amended consolidated complaint as true for the purposes of this Order, the pertinent facts are these. As stated above, plaintiffs are retired members of the Air National Guard who were also employed as civilian military technicians for 20 years or more and who became entitled to receive Social Security retirement or disability benefits after 1985 and before February 3, 2011, when Petersen was decided. Plaintiffs are all permanent residents within the jurisdiction of the Eighth Circuit Court of Appeals. Plaintiffs request that this Court certify a class based on these criteria, but exclude from that class the defendants and their officers, directors, affiliates, employees, legal representatives, heirs, successors, assigns, assignees, and any entity with a controlling interest in a defendant.
As a condition of employment as civil service employees, pursuant to the National Guard Technicians Act of 1968, 32 U.S.C. § 709, an individual cannot hold employment as a National Guard civilian technician unless that individual is an active member of the National Guard for which he or she works and holds the military grade that the Secretary of the Army or the Secretary of the Air Force has specified for the position. Plaintiffs were members of their respective Air National Guard, were required to participate in weekend and summer military training and drills, were required to wear military uniforms on the job, and were required to maintain military physical standards.
Due to the dual-status nature of the plaintiffs' employment, the Commissioner of the SSA applied the WEP to plaintiffs' retirement benefits for the civil service pension and reduced plaintiffs' entitlement to benefits under the Social Security Act. Plaintiffs claim that this application was wrongful and in error.
Section 215(a)(7)(A) of the Social Security Act, 42 U.S.C. § 415(a)(7)(A), provides that the WEP does not apply to individuals who receive periodic payments "wholly for service as a member of a uniformed service." Plaintiffs claim they, as dual-status technicians, receive a civil service pension based wholly on service as dual-status National Guard technicians and that they therefore fall within the category of workers excluded from the application of the WEP.
On February 2, 2011, the Eighth Circuit Court of Appeals in Petersen found that, under the plain language of 42 U.S.C. § 410(m) and § 415(a)(7)(A), the WEP does not apply to dual-status National Guard technicians. Petersen, 633 F.3d at 637. This decision is contrary to the interpretation of the SSA, which continues to apply the WEP to dual-status National Guard technicians outside the jurisdiction of the Eighth Circuit. On August 27, 2012, the SSA published in the Federal Register an Acquiescence Ruling ("AR") which stated that the SSA would not apply the WEP to social security determinations or decisions of dual-status National Guard technicians made on or after August 27, 2012, if the technicians were permanent residents within the jurisdiction of the Eighth Circuit. 77 Fed. Reg. 51, 842 (Aug 27, 2012). The AR further stated that, if the SSA made a determination or decision to apply the WEP to the aforementioned class of people between February 3, 2011, the date of the Petersen decision, and August 27, 2012, the effective date of the AR, a beneficiary could request that the SSA apply the AR to the prior determination or decision. Id.
Plaintiffs each received a decision from the SSA to figure a retirement benefit using the WEP before February 3, 2011. Plaintiffs each received information from the SSA after February 3, 2011, indicating that their benefits might be increased if (1) they received a pension based wholly on service as a dual-service National Guard technician; (2) they lived permanently in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, or South Dakota at the time of the SSA's decision on their benefits; and (3) they received a SSA decision figuring a retirement or disability benefit using the WEP that was made on or after February 3, 2011. Plaintiffs claim that they are unable to have their benefit decisions using the WEP judicially or administratively reviewed and continue to receive payments reduced by the WEP. Plaintiffs claim that they have been refused recalculations because their applications for retirement benefits from the SSA were filed before February 3, 2011. Plaintiffs seek in this case a ruling that application of the WEP to their benefits was unlawful, seek to have their benefits exempted from the WEP going forward, and seek payment of benefits they contend were allegedly underpaid.
II. Motion To Dismiss Pursuant To Federal Rule of Civil Procedure 12(b)(1)
Federal courts are courts of limited jurisdiction and have the power to hear only those cases that they have been authorized to hear by Congress or by the Constitution. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). "[T]he party invoking federal jurisdiction bears the burden of establishing its existence." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998). This Court must determine whether it has subject matter jurisdiction before addressing the merits of the complaint, see Id. at 94-95, and should "presume that [it] lack[s] jurisdiction unless the contrary appears affirmatively from the record." Renne v. Geary, 501 U.S. 312, 316 (1991) (citations and quotations omitted).
"The United States, as sovereign, is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (quotations omitted). Plaintiffs have the burden to prove both a waiver of sovereign immunity and the existence of subject matter ...