Petition for Writ of Certiorari — Warren v. Sullivan

IN THE

SUPREME COURT OF THE UNITED STAT \ JUN 12 1992

OCTOBER TERM, 1992 OFFRE OF GuE CUR

ROY H. WARREN

Petitioner

versus

SECRETARY OF HEALTH

AND HUMAN SERVICES

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Terrance Hamilton Endsley

COUNSEL FOR PETITIONER

Suite D. Park Tower Bldg.

57 North Somerville Street

Memphis, Tennessee 38104

PA kN Sa AON yD ER erg RE

STATEMENT OF ISSUES

THE TWO QUESTIONS TO BE DECIDED ARE:

(1) Whether a mistake in fact

incorporated in the Court of Appeals

decision was material to the decision of

the Court, and

(2) Whether an agency can write and

interpret regulations in direct conflict

with the statutes and the intent of

Congress, and whether a Federal agency

can require a claimant to follow over

technical interpretation of a regulation

and not, when less favorable to the

agency, be required to follow them

themselves.

TABLE OF CONTENTS

Opinions Below 1

Jurisdiction 3

Statement of the Case 3

Reason for Granting 8

Conclusions 12

Appendix 1 14

Appendix 2 30

Appendix 3 47

Appendix 4 58

UNITED STATES SUPREME COURT

ROY H. WARREN

Plaintiff-Appellant

Vv, Docket #

SECRETARY OF HEALTH

AND HUMAN SERVICES

Defendant-Appellee

WRIT OF CERTIORARI

OPINIONS BELOW

The Social Security Administration,

after a hearing by an Administrative Law

Judge and appeal to the Appeals Council,

adopted the Administrative Law Judge's

position in this matter and found that

the Petitioner was not entitled to Social

Security Retirement Benefits because he

did not have the required quarters of

coverage to qualify for these benefits.1}

The Magistrate for the United States

District for the Western District of

' See Appendix 3. Final

Determination of the Department of Health

and Human Services.

Tennessee recommended. to Judge Turner,

United States District Court Judge, that

this case be dismissed stating that the

Claimant was not entitled to Social

Security Retirement Benefits because he

was not entitled to use World War II wage

credits because he had been determined to

be eligible for and paid retirement

benefits from the Civil Service Board.?

Judge Turner agreed with’ the

Magistrate and after correcting the

factual background stated that the

regulations as interpreted by the

Secretary of Health and Human Services

(Secretary) were substantially based on

the statutes and the language of the

statutes and regulations on their face

é See Appendix 2. REPORT AND

RECCOMMENDATION of Magistrate Allen

2

denied Mr. Warren these benefits and he

dismissed the complaint?

The United States Court of Appeals

for the Sixth Circuit Agreed with this

opinion?

JURISDICTION

This case Comes to this Court on a

request for a Writ of Certiorari to the

Sixth Circuit Court of Appeals by Rule 11

of the United States Supreme Court.

STATEMENT OF THE CASE

This case is brought before this

Court for review from the Sixth Circuit

Court of appeals who on April 20, 1992°,

interred an order affirming the dismissal

of the above captioned case by the United

3 See Appendix 4. ORDER ON

OBJECTIONS TO THE MAGISTRATE'S REPORT AND

RECCOMMENDATION .

‘ See Appendix 1

3 ROY H. WARREN v. SECRETARY OF

HEALTH AND HUMAN SERVICES Docket # 91-5514.

A copy of which is attached to this opinion

(Appendix 1)

States District Court for the Western

District of Tennessee on March 27, 1991,

Judge Turner presiding®. That dismissal

affirmed the decision of the Secretary of

Health and Human Services that Mr. Warren

was not fully insured and eligible for

retirement benefits under the _ Social

Security Administration as a result of

his appiication for retirement benefits

on October 8, 1986’.

The two questions to be decided are

(1) whether a mistake in fact

incorporated in the Court of Appeals'

decision was material to the decision of

the Court, and (2) whether an agency can

write and int-rpret regulations in direct

6 ROY H. WARREN v. OTIS W. BOWEN,

SECRETARY, Doc. # 888-2502-TuA. A copy of

the opinion is attached to this petition

(Appendix 4)

7 See the decision of the

Administrative Law Judge, Timothy O'Leary.

See Appendix 3

conflict with the statutes and the intent

ef Congress.

This Case, if left alone by this

Court, would also allow a conflict to

exist between federal courts as to how

the questioned regulations and statutes

should be interpreted.

This Case arose when Mr. Warren was

denied retirement benefits by the Social

Security Administration because he did

not have the required quarters of

coverage to qualify for benefits. The

Social Security Administration

(Administration) determined that his time

in the Navy during World War II could not

be usec to bring the number of quarters

of coverage to the required level. The

Administration determined that because

Mr. Warren had been paid by the Civil

Service Board benefits they had used the

World War II time to calculate benefits

and he was no longer entitled to use

5

| r

those quarters for Social Security

benefits. If Mr. Warren had in any way

initiated or even acquiesced in the

determinations of the Civil Service Board

this opinion would agree with all other

court decisions that address’ this

situation.

Mr. Warren was employed by the Corps

of Engineers when he was totally disabled

through an on the job injury. He was

entitled to and applied for civil service

disability. This benefit did not depend

in any way on the time he spent in the

service during World War II. Instead of

paying him 75% of his pay as disability

as he was entitled to under the plan, he

was paid 33% of his pay through the Civil

Service annuity plan. Mr. Warren

appealed this decision and was determined

to be entitled to disability. All money

paid him incorrectly was refunded.

Ee

a

The Court of Appeals states in its

opinion of April 20, 1992, that

apparently Mr. Warren applied for Civil

Service benefits when his disability was

terminated in 1983.® This is a repeat

of a finding made by the Magistrate at

the District Court prior to Judge

Turner's decision to dismiss.? It must

be strongly emphasized that the

Magistrate's opinion of the facts was

repudiated by Judge Turner's decision.?°

Judge Turner found no _ evidence to

substantiate the Magistrate's finding in

this regard and found that absent -

evidence to the contrary, Mr. Warren's

8 See the third full paragraph on

page two of the Sixth Circuit Court of

Appeals Opinion attached as Appendix 1.

9 See Paragraph 2, page 3, of

Magistrate Allen's REPORT AND RECOMMEN-

DATION which is attached as Appendix ;

10 See Objection I: The court

relies upon a material factual error found

on page 1 and 2 of Judge Turner's opinion

which is attached to this opinion as

Appendix 3.

sworn testimony before the Administrative

Law Judge was controlling as to the

facts.

Mr. Warren stated under oath and

documents later located and brought to

the attention of the Court verify that

Mr. Warren did not apply for Civil

Service Benefits. These benefits were

assigned him by the administration. When

they were assigned to Mr. Warren he

appealed the decision and Mr. Warren was

found to be correct. All benefits

incorrectly paid Mr. Warren were repaid "a

to thé Civil Service board in full on

both occasions.

REASONS FOR GRANTING

The opinion of the Sixth Circuit

Court of Appeals flies in the face of the

controlling issue as determined by the

Eighth Circuit Court of appeals. In

ee |

ee

Taylor v. Gardner?! that court found the

controlling issue to be whether the

veteran had made a competent choice. The

veteran's family was allowed to disclaim

the Civil Service benefit in favor of the

Social Security benefit because’ the

veteran was incompetent when the choice

had been made prior to his death. This

is the only case found that deals

directly with retirement benefits at the

Court of Appeals level and it clearly

turns on the choice the veteran made.

Other cases at the District Court

level seem to follow this same reasoning.

In Southerland}? and in Moncrief*

retirement benefits were denied because a

competent choice to except the benefits

" Taylor v. Gardner, ._ 393 F.Supp

257

te Southerland v. Flemming, 189

F.2d 712.

Moncrief v. Folsom, 233 F.2d

471.

had been made by the veteran and even

though no payments had been received

prior to his death, the estate was bound

by that decision.

In Mr. Warren's case it is clear

that Mr. Warren made a choice which he

was entitled to by law. This choice was

ignored by the Civil Service Board and

Mr. Warren was arbitrarily and

incorrectly placed in the wrong program.

Now the Administration seeks to use this

mistake to deny Mr. Warren the benefits

he would be entitled to had it not been

for the mistake made by the government.

The Court of Appeals states in its

opinion that Mr. Warren is still entitled

to use the quarters of coverage earned in

the Navy during World War II under the

Civil Service plan. This is meaningless

because of Mr. Warren's disability. He

would be required to give up his

disability plan which he is clearly

10

7

entitled to in favor of a much lower

benefit plan through the Civil Service

Board. The Civil Service Board will not

allow Mr. Warren to draw benefits from

retirement and disability plans. Mr.

Warren is now being penalized for his

time in the service during World War II.

This is clearly against the intent of

Congress. 14

The Sixth Circuit and all the

opinions below in this case try to

propitiate this absurd and ridiculous

result by rewarding the Administration

for its mistakes.

A major step that must be completed

by any applicant to receive any benefit

from the Social Security Administration

4 See Senate Report 528, July 30

1953; Senate Report 1806, June 23, 1952;

Senate Report 1146, July 26, 1955; and

Senate Report 1669, May 17, 1950.

11

and is cited as such in the ALJ's

opinion?® The Government can refuse to

pay a claimant prior to his filing an

application. Now the same government

agency argues that the claimant does not

have to apply, he only needs to be

determined eligible. This double

standard is not consistent with basic

principals of equity.

CONCLUSIONS

We find no possible ambiguity in the

statute the Administration relies on that

could reach such an absurd conclusion, °

but if one does exist it is clear from

the Congressional Record at the time of

the passing of the laws in question that

the Congress intended that the serviceman

15 See Page 1 of Appendix 3:

Section 202(a) of the Social Security Act

provides, as pertinent here, for the

payment of old-age insurance benefits to an

individual who is a fully insured

individual [as defined by section 214(a)],

has attained age 62, and has_ filed

application for such benefits. [emphasis

added}

12

was to have the right to choose the plan

that was best for him and that once this

decision had been made it could not be

changed. All other cases in Federal

Courts turn on this one point and the

United States Supreme Court’ should

resolve the ambiguity the Sixth Circuit

opinion in this case will cause.

Respectfully Submitted

TERRANCE HAMILTON ENDSLEY

Attorney for Appellant

57 N. Somerville, Suite D

Memphis, Tennessee 38104

901-529-8961 TN BPR#¥012410

13

APPENDIX 1

NOT FOR PUBLICATION

91-5514

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

April 6, 1992

ROY H. WARREN )

Plaintiff-Appellant ) ON APPEAL FROM THE

UNITED STATES

DISTRICT COURT FOR

THE WESTERN

DISTRICT OF

TENNESSEE

Vv.

SECRETARY OF HEALTH

AND HUMAN SERVICES

Defendant-Appellee

ee ee ee ee eee ee”

BEFORE: KEITH, SILER, Circuit Judges,

and BERTELSMAN, District Judge* -

PER CURIAM: Plaintiff-appellant, Roy H.

Warren ("Warren"), appealed from the

denial of his claim for social security

retirement benefits by the Secretary of

Health and Human Services (the

"Secretary") pursuant to 42 U.S.C. Secs.

414(a)(1), 417(a) and 20 C.F.R. Sec.

* The Honorable William Oo.

Bertelsmann, Chief Judge United States

District Court for the Eastern District of

Kentucky, sitting by designation.

14

404.1342(c). The district court

dismissed his complaint, which sought

review of the Secretary's decision

holding that the Secretary's findings are

based on substantial evidence in the

record. For the reasons stated below we

AFFIRM the district court's dismissal.

I.

Warren served active military duty

with the United States Navy during World

War II from September 6, 1943, to May 1,

1946. He returned to civilian life and

was employed in various’ positions

following the war. In 1951, he began

working in a civilian capacity with the

United States Air Force and continued to

do so until 1971. at that time, Warren

was terminated from employment at the

United States Air Force Base in

Case No 91-5514 page 2

15

is |

Warner Robins, Georgia because of an

injury to his back which had occurred on

the job.

On June 1, 1971, an application

seeking disability compensation was filed

on behalf of Warren with the Office of

Federal Employees Compensation of the

Department of Labor ("Department of

Labor" or "Department"). The disposition

of this application turned solely on his

Civilian service with the Air Force.

Because of a delay in the disposition of

the disability payments by the Department »

of Labor, Air Force personnel "improperly

arranged" for Warren to begin receiving

retirement payments from the United

States Civil Service Commission ("Civil

Service Commission" or "Commission").

The facts indicate that the Air Force

personnel acted independently, and Warren

had nothing to do with this retirement

claim. The Commission was required to

16

a ee |

take into account Warren's wartime

service on this claim for retirement

benefits.

Warren received payments from the

Civil Service commission until September

26, 1972, when the Department of Labor

finally approved Warren's claim for

disability benefits. The Department of

Labor sent Warren $6115.44 as

compensation for temporary total

disability, and began monthly payments.

The Department of Labor also reimbursed

the Civil Service Commission for payments

in the sum of $6,385.00. This

reimbursement was made upon the request

of the Commission for payments made to

Warren because of the Department's delay

in approving his application for

disability benefits.

The Department of Labor continued to

pay these benefits until March of 1980,

when the Department determined that

ae

Warren could not establish that his prior

injury continued to result in disability

for work or loss of capacity. At this

point, Warren apparently applied to the

Civil Service Retirement System _ for

retirement income to begin as of March

28, 1980, and these retirement benefits

began. These retirement benefits again

took due account of his World War II

active duty.

Case No. 9105514 Page 3

The Department of Labor later

reinstated his disability compensation

benefits and again reimbursed the Civil

Service Retirement System for their

payments to Warren in the sum _ of

$12,951.33. Warren continues to receive

these disability compensation payments,

and is eligible to receive the Civil

18

Service retirement benefits if his

disability payments ever cease. iy

Warren filed an application for

Social Security Retirement Insurance

Benefits on October 8, 1986. The

Secretary's grant or denial of his

application turned on whether Warren may

receive credit for his time spent on

active military duty during World War II.

If so, Warren would be entitled to Social

Security Retirement Insurance benefits.

If Warren is not entitled to use the

employment credit for his World War II

military service, he has not accrued the

requisite time of employment to receive

these insurance benefits.

The Secretary denied Warren's

application both upon initial application

and after an evidentiary hearing. The

Secretary concluded that Warren was not

entitled to credit for his wartime

military service since this credit had

19

Se

been used in obtaining his Civil Service

retirement income. The credit, however,

is still available for that use. The

district court dismissed Warren's

complaint challenging the Secretary's

determination finding "that the decision

of the Secretary [was] supported by

substantial evidence and that there [was]

no legal error. This timely appeal

followed.

iI.

A claimant must attain the age of 62

and have fully insured status in order to

qualify for Social Security Retirement

Insurance Benefits under 42 U.S.C. sec.

402(a). Fully insured status. is

established if an individual has credits

for the necessary quarters of coverage

granted for work covered under the Social

Security Act. 42 U.S.C. sec. 414.

Warren was born in January 1925 and needs

thirty-six (36) quarters of coverage to

20

meet the statutory definition. Warren

has established twenty-eight (28)

quarters of credit,

Case No. 91-5514 Page 4

and if his active military service during

World War II is credited, he will meet

the statutory definition.

A.

Congress intended that veterans of

World War II be given credit for earning

wages during each month of their active

military or naval service. 42 U.S.C.

sec. 417(a) provides in pertinent part:

(1) for purposes of determining

entitlement to and the amount of any

monthly benefit for any month after

August 1950, . . . payable under

this subchapter on the basis of the

wages and self-employment income of

21

r

any World War II veteran, .. . such

veteran shall be deemed to have been

paid wages (in addition to the

wages, if any, actually paid to him)

of $160 in each month during any

part of which he served in the

active military or naval service of

the United States during World War

Iz. This section shall not be

applicable in the case of any

monthly benefit or lump-sum death

payment if --

(B) a benefit . . . which is based,

in whole or in part, upon the active

military or naval service of such

veteran during World War II is

determined by any agency or wholly

owned instrumentality of the United

States (other than the Veterans'

Administration) to be payable by it

under any other law of the United

22

re

States or under a system established

by such agency or instrumentality...

The Secretary must ascertain whether some

other United States instrumentality has

determined that a benefit is payable by

it. 42 U.S.C. Sec. 417(a) (2). The

Secretary will review an application

without regard to this provision only if

she has no notice after injury that such

a benefit is payable. Id. However, if

the Secretary receives notice from some

other agency that "such a benefit is

payable by it", the Secretary must then

"certify no further benefits for payment

or shall re-compute the amount of any

further benefit payable . . ."Id.

The Secretary has promulgated and

administered the following regulation,

interpreting this statutory scheme:

You do not get wage credit for the

World War II period if another

Federal benefit (other than one

23

payable by the Veterans'

Administration) is determined by a

Federal agency of an instrumentality

owned entirely by the United States

to

Case No 91-5514 Page 5

be payable to you, even though the

Federal benefit is not actually paid

or is paid and then terminated,

based in part on your active service

during the World War II period.

20 C.F.R. sec 404.1342 (c) 1988). The

regulations make it clear that’ the

benefit must stop or be recalculated upon

notification that "a Federal benefit is

payable" to the claimant based upon that

service. 20 C.F.R. sec 404.2472(a), (b).

Warren argues on appeal that the

regulations established by the Department

of Health and Human Services interpreting

24

the federal wage credit statute "are

invalid because they do not implement the

unambiguous language of the statute that

they purport to administer."

Re review the Secretary's decision

to deny benefits to determine whether it

is supported by substantial evidence,

and "and the court shall review only the

question of conformity with such

regulations and the validity of such

regulations." 42 U.S.C. Sec. 405(g).

See also Landsaw v. Secretary of Health

and Human services, 803 F.2d 211,213 (6th

Cir. 1986). We accord deference to an

agency's interpretation of a statute that

is charged with administering if that

interpretation is reasonable. See

generally, Chevron, U.S.A., Inc., v.

National Resources Defense Council, 467

U.S. 837 (1984).

25

The secretary*s finding that Warren

is not eligible for the war wage credits

is certainly supported by substantial

evidence. Warren falls squarely within

the regulatory language that the

Secretary has promulgated. He has

received Federal benefits based upon his

military service during World War II from

the Civil Service Commission on _ two

occasions. Whether he prompted the

payments of these benefits is not

relevant on the face of the statute or

the regulation. Moreover, Warren remains

eligible to receive Civil Service

Retirement Benefits upon termination of

his disability benefits. Accordingly,

the Secretary' findings are affirmed

based upon the substantial evidence.

Case No. 91-5514 Page 6

26

Cc.

On appeal, Warren principally argues

that the wage credit regulatory scheme

promulgated by the Secretary is invalid

because it does not implement’ the

intention of Congress. Warren challenges

the regulation because it precludes him

from applying the war wage credit to the

federal benefit of his choice. He argues

that the legislative history behind the

statute clearly indicates that Congress

intended that veterans have this choice.

Warren also contends that it is

significant that he did not apply for the

benefits, and merely received them as a

result of independent government action.

Warren contends that the application of

the wage credit exception to him in these

circumstances contravenes the intentions

of Congress and limits his use of the war

wage credits unfairly.

ae ee

The plain language of the war wage

credit statutory scheme prevents a

claimant from receiving benefits from two

federal programs by using the World War

1 On its face, the

II active duty time.

regulation implements this clear

intention of Congress. the touchstone of

both the statute and regulation is

whether a federal benefit has been deemed

"payable" by another federal agency or

instrumentality. Neither the statute on

its face nor the regulation requires

actual payment of the benefit. *

additionally, the statute and regulation ,

do not inquire as to who applied for the

benefit. it is, therefore, irrelevant

that Warren did not set ito motion the

instrumentality that led to his receipt

1 It is also plausible that

Congress made a statutory choice that as

between Social Security retirement

insurance fund and some other Federal

agency fund a claimant must collect

benefits from the latter.

28

ee

of benefits. Finally, the statute and

the regulation do not preclude the

Claimant from receiving the declared

alternative benefit. For example, Warren

may still claim against the Civil Service

retirement annuity. Accordingly, we

conclude that the war wage credit

statutory and regulatory schemes utilized

by the Secretary are congruous, and

reject Warren's challenge to the

regulatory scheme.

Case No. 91-5514 Page 7

iii.

For the foregoing reasons we AFFIRM

the ruling of the Honorable Jerome

Turner, United States District Justice

for the Western District of Tennessee.

29

APPENDIX 2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

November 1, 1989

ROY H. WARREN,

Plaintiff,

Vv. No. 88-2502-TuA

OTIS W. BOWEN,

SECRETARY

Defendant.

+ + + + + FH

REPORT AND RECOMMENDATION

Plaintiff Roy H. Warren, through

council, (hereinafter "plaintiff") has

brought this complaint seeking judicial vee

review of a decision of the Social

Security Administration, a subdivision of

the Department of Health and _ Human

Services (hereinafter "Secretary"), which

was adverse to plaintiff's claim for

Social Security Retirement benefits. The

matter has been referred to the United

30

ee

States Magistrate for report and

recommendation.

ADMINISTRATIVE PROCEEDINGS

On October 8, 1986, plaintiff filed

with the Secretary his application for

Retirement Insurance Benefits (Transcript

of administrative Proceedings, pp. 36-

39)?. Without working through the

Byzantine requirements of the Social

Security Act and regulations thereunder,

regarding the requirements for plaintiff

te be covered and thus to be "fully

insured", it is sufficient to

say that if plaintiff received credit for

time spent on active military duty during

' The Administrative Transcript

will hereinafter be referred to by page

number only.

31

World War II (in this case from September

of 1984 to May of 1946), he would be

entitled to early Social Security

retirement insurance benefits under his

application of October 8, 1986. However,

if plaintiff is not entitled to credit

for his World War II military service, he

would not be entitled to these early

retirement insurance benefits.

The evidence disclosed at _ the

hearing? before the Administrative Law

Judge (hereinafter "ALJ") showed that

plaintiff served on active duty with the

United States Navy, during World War II,

from September 6, 1943, to May 1, 1946

(50).

Plaintiff returned to civilian life,

working at various jobs. until on March

31, 1951, he began working, in a civilian

capacity, with the United States Air

é Plaintiff was not represented

by council at this hearing.

32

Force (27). He continued in that

Capacity until 1971 (9). Some time prior

to that, plaintiff injured his back while

on the job (12, 27). He used up accrued

sick leave (30) and was’7 thereafter

terminated by the United States Air Force

at Warner Robins Air Force base, Georgia

(27-28).

Apparently on June ‘. 1971,

plaintiff (or the United States Air Force

filed a claim on plaintiff's behalf. with

the office of Federal Employment

Compensation of the Department of Labor

seeking disability compensation (51). It

is to be noted that plaintiff would not

need his time served on active duty in

World War II to be entitled to disability

compensation from the Department of

Labor.

33

According to plaintiff, there was a

lengthy delay of the part of the

Department of Labor in beginning his

disability compensation payments (28).

Plaintiff was without money and contacted

various Senators for assistance (28).

Apparently plaintiff also complained

to the personnel office at Warner Robbins

Air Force Base, and they "improperly

arranged" for plaintiff to begin

receiving retirement pay from the United

States Civil Service Commission (6).

Plaintift has insisted that he had

nothing to do with this retirement claim,

and there is no proof to the contrary.

It seems obvious that these individuals

at Warner Robins Air force Base were

concerned about plaintiff not receiving

any money and looking at Civil Service

retirement as an alternative.

A claim for retirement benefits for

plaintiff from the United States Civil

34

Service Commission would need to take

into account plaintiff's war-time service

(15).

Plaintiff continued to- receive

payments from the Civil Service

Commission until September 26, 1972

(54)?. Finally the Department of Labor

approved plaintiff's claim for disability

compensation benefits. Plaintiff was

sent $6115.44 as compensation entitlement

for temporary total disability and

monthly payments were begun. The

Department of Labor, at the request of

the Civil Service Commission, also paid

to them the sum of $6,384.00,

representing a refund of the Civil

3 Apparently plaintiff receives

more per month from his disability claim

with the Department of Labor than he does

from his retirement from the Civil Service

Commission.

35

_

Service Commission of payments they made

to plaintiff during this waiting

page 3

period (54).

Plaintiff continued to receive his

monthly disability benefits from the

Department of Labor until on or about

March 28, 1980, when the Department of

Labor stopped plaintiff's disability

compensation benefits on the basis that

plaintiff was not able to establish that

his prior injury continued to result in .

disability for work or loss of capacity

to earn wages (80).

Plaintiff apparently applied to the

Civil Service Retirement System for

retirement income to begin as of March

28, 1980, and benefits were commenced

(82).

Later the Department of Labor

reinstated his disability compensation

36

a

a ——————————————_______eeeee

benefits (33) and reimbursed the Civil

Service Retirement System their payments

of $12,951.33 (85). Presumably plaintiff

is now. receiving his disability

compensation payments from the Department

of Labor. Also presumably if the

Department of Labor ever terminates

plaintiff's disability compensation

payments, he will be able to resume

collecting his retirement income from the

Civil Service Retirement System.

Cc ND ONCLUSIONS OF LAW

As previously indicated, on October

8, 1986, plaintiff filed his application

for Retirement Insurance benefits under

Social Security. This application was

denied administratively and after

evidentiary hearing because it was

concluded that plaintiff was not entitled

to credit for his wartime military

page 4

service, since he had used this credit in

obtaining his Civil Service Retirement

income, and it was available for such

use.

A World War II veteran is, by

statute, generally given credit for

earning wages (and thus working necessary

quarters for purpose of Social Security

retirement insurance income benefits) for

active military or naval service during

World War II. 42 USC Sec. 417(A) (1).

However, this general rule is not

applicable where:

"...a benefit...which is based, in

whole or in part, upon the active

military or naval service of such

veteran during World War II is

determined by any agency or wholly

owned instrumentality of the United

States (other than The Veterans"

Administration) to be payable by it

under any other law of the United

38

States or under a system

established by such agency or

instrumentality...". 42 USC Sec.

417(A) (1) (B).

The Secretary shall decide an

application for Social Security

Retirement Insurance benefits by a World

War II veteran without regard to Sec.

417(a)(1)(B), unless he or she:

",..has been notified by some other

agency or instrumentality of the

United States that, on the basis of

the military or naval service of

such veteran during World War II, a

benefit described in...Sec. 417

(a) (1)(B)...has been determined by

such agency or instrumentality to be

payable by 2t...42 . UGC Sec.

417(A) (2).

If the Secretary has not been so

notified, he or she:

39

",..Sshall then ascertain whether

some other agency or wholly owned

instrumentality of the United States

has decided that a benefit described

in (Sec. 417 (a) (1)(B)... is payable

by it...42 USC Sec. 417(A) (2).

When the Secretary receives the

foregoing certification by some other

agency or instrumentality that "such a

benefit is payable by it", the Secretary

must then "such a benefit is payable by

it", the Secretary must then "certify no

further

benefits for payment or shall recompute

the amount of any further benefits

payable..." 42 USC Sec. (a)(2).

The Secretary, by duly published

regulations, has provided an

interpretation of this statute.

40

"You do not get wage credits for the

World War II period if another

Federal benefit (other than one

payable by the Veterans

Administration) is determined by a

Federal agency or an instrumentality

owned entirely by the United States

to be payable to you, even though

the federal benefit is not actually

paid or is paid and then terminated,

based in part on your active service

during the World War II period..."

(emphasis added)

In other regulations, the Secretary

makes it clear that benefits are to be

recalculated or stopped if the Secretary

learn that "a Federal benefit is payable"

to a Claimant by an agency’ or

instrumentality based upon .a veteran's

World War II active service. 20 CFR

sec. 404.1371 (a), (b), 404.1363.

41

The ALJ concluded that Plaintiff is

"eligible" to receive a Civil Service

annuity; that that eligibility takes into

account credit for plaintiff's World War

II active duty service; and that

therefore, under statutes and

regulations, plaintiff may not use this

World War II active duty service time to

obtain Social Security retirement

insurance benefits (16). This conclusion

was approved by the Appeals council (2-

3), thus making it the decision of the

Secretary.

Plaintiff has argued that this

statute and the regulations are intended

to prevent an applicant from using his

service time to receive benefits from two

Federal programs, and that the

Secretary's interpretation would have the

effect of

ee

preventing plaintiff from using this

service time at all. These claims are,

it is submitted, without merit.

While it may be assumed this statute

and these regulations were partially

intended to prevent an applicant from

collecting from two Federal programs by

the use of World War II active duty time,

it is just as reasonable to assume that

the legislative and regulatory intent was

to limit claims against the Social

Security retirement insurance fund, so

that, if a person could conceivable claim

against the Social Security retirement

insurance fund and also against some

other Federal agency's funds, he or she

Should collect from the latter.

Further, it is simply not true that |

the action of the Secretary has the

effect of preventing plaintiff from using

this service time at all. Plaintiff may,

if he chooses, claim against his Civil

43

Service retirement annuity (where his

World War II active duty service time is

helpful), and, in fact, plaintiff has

done so in 1980-1981.

Plaintiff also argues that he never

"applied" for active duty service time.

According to plaintiff it was erroneous

for "the government" to submit= an

application, on behalf of plaintiff for

Civil Service Annuity. Plaintiff does

not deny that he asked for these benefits

temporarily in 1980-1981.

In any event, it is submitted, the

test is not whether plaintiff applied

for, and received, benefits from another

agency or instrumentality of the United

States, which benefits were based in

whole or in part on World War II active

duty service time. Rather, the test is

whether such a benefit "has been

page 7

|

determined by such agency or instru-

mentality to be Payable by it...". 42

USC Sec. 417(a) (2). The Civil Service

Retirement System has made such a determ-

ination. The statute does not require

that payment on such determination be

made.

Under these circumstances, it is

Submitted that the decision of the

Secretary is consistent with the language

of 42 USC Sec. 417(a), and with his

regulations. There is no significant

dispute over the facts of this case.

Therefore, “it is submitted that the

complaint by plaintiff should be

dismissed.

All parties are advised that all

objections to this report and

recommendation must be filed within ten

(10) days or such objections may be

deemed waived by the District Court.

Additionally, such a failure to file

45

within ten (10) days may be treated as a

waiver of the right to appeal the

District Court"s order hereon. U.S. v

Walters, 639 F.2d. 947 (6th.Cir. 1981);

Patterson v Mintzes, 717 F.2d. 284 (6th

Cir. 1983) Thomas v Arn, 474 U.S. 140,

(1985); see also FED. R. CIV. P. 72(b).

Respectfully submitted this 2nd _

day of October, 1989.

JAMES H. ALLEN

UNITED STATES MAGISTRATE

46

APPENDIX 3

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social Security Administration

OFFICE OF HEARINGS AND APPEALS

DECISION

IN THE CASE OF: CLAIM FOR:

Old-Age Insurance

Ro’ H. Warren Benefits

(Claimant)

415-26-5226

(Wage Earner) (Soc. Sec. Number)

This case is before the Administrative

Law Judge on a request for hearing. The

Administrative Law Judge has carefully

considered all the documents identified

in the record as exhibits, the testimony

at the hearing and arguments presented.

ISSUES

The issue before the Administrative Law

Judge is whether the claimant is entitled

to old-age insurance benefits which

depends, in part, on whether he has the

47

prerequisite quarters of coverage to be

fully insured for such benefits.

Specifically at issue is whether the

claimant's earnings record may _ be

credited with wages for the years 1937-

1942 and September, 1943 through May,

1946.

APPLICABLE REGULATIONS

AND_ EVALUATION OF THE EVIDENCE

Section 202(a) of the Social Security Act

provides, as pertinent here, for the

payment of old-age insurance benefits to

an individual who is a fully insured

individual [as defined in section

214(a)], has attained the age 62, and has

filed application for such benefits.

48

Section 214(a) of the Act, as pertinent

here, defines the term "fully insured

individual" as any person who has not

less than one quarter of coverage for

each calendar year elapsing after 1950

and before the year in which he or she

attained age 62.

Section 213(a) of the Act provides, as

pertinent here, that the term "quarter of

coverage" means, for calendar year before

1978, a calendar quarter in which an

individual has been paid $50 or more in

wages or has been credited with $100 or

more in self-employment income.

Section 213(a) of the Act’ further

provides, as pertinent here, that the

term “quarter of coverage"- ineans, for

calendar year after 1977, each portion of

the total of the wages paid and the self-

emp lovment income credited to an

49

individual in a calendar year which

equals the amount required for a quarter

of coverage in that calendar year [as

determined under subsection (d)]}.

Subsection (da) provides that for the

years prior to 1978, that amount is

$50.00.

Section 209 of the Act provides, as

pertinent here, that the term "wages"

means remuneration for employment.

Section 211(b) of the Act, as pertinent

here, provides that the term "self-

employment income" means that net

earnings from self-employment derived by

an individual during any taxable year

beginning after 1950, except that such

term shall not include the net earnings

from self-employment if such net earnings

for the taxable year are less than $400.

50

Section 211(a) of the Social Security

Act, as pertinent here, defines the term

"net earnings from self-employment" as

the gross income, as computed under

subtitle A of the Internal Revenue Code

of 1954, derived by an individual from

any trade of business carried on by such

individual, less the deductions allowed

under that subtitle which are

attributable to such trade or business.

U ON OF THE NC

The claimant herein filed an application

for retirement insurance benefits’ on

October 8, 1986, and was notified

November 28, 1986 that his application

was denied because he was hot fully

insured due to a lack of sufficient

quarters of coverage. Therefore, the

issue distills to whether the claimant

can be entitled to retirement insurance

51

benefits and whether her is fully

insured.

When the claimant retired from the Air

Force in 1972, his military service from

September 6, 1943 through May 1, 1946 was

used in computing the Civil Service

retirement which he began receiving. He

subsequently filed for worker's

compensation through the Department of

Labor and received a higher benefit.

Consequently, his Civil Service annuity

was terminated and he began receiving -

worker's compensation benefits. At this |

point, $6,385.00 was refunded to the U.S.

Civil Service Commission.

The claimant is this case contends that

he is entitled to have quarters of

52

hi aameenieaiiaeiieleaaaaaiiaiaeia ieee

coverage derived from his_ military

service credited to his Social Security

retirement benefit amount. The

Administration holds that the claimant

was insured on his Federal employment and

"eligible" for Civil Service annuity

(disability). In making this

computation, his initial pension was

based on his military service. The

Claimant elected to receive worker's

compensation through the Department of

Labor rather than Civil Service

disability. The Department of Labor did

not use claimant's military service in

the computation. Therefore, the

Administration finds that because the

claimant was "eligible" for Civil Service

annuity with military service credited,

he cannot transfer quarters. of coverage

for computation in his Social Security

benefits.

53

The evidence includes two earnings

records which were reviewed by the

claimant who stated they were correct as

posted except for a period of 1937

through 1942. Because of this dispute,

the claimant was given an opportunity to

locate evidence during this time which

would credit him with additional quarters

of coverage. However, he was unable to

do so.

Having reviewed the evidence, the

undersigned concurs with the x

Administration's position that, if the

claimant were eligible for a Civil

Service annuity and he elected to receive

a higher benefit from worker's

compensation, this would not mean he

could credit military service quarters of

coverage wherever he decided. Section

404.1342(c) as pertinent herein states

that, wage credits for military service

54

biceereeeceeenaasemassasssiamaasameasmmceammmesmcmaaaiiiaiitiitimeeeal

cannot be granted if another Federal

benefit is determined by a federal agency

to be payable to you, even though the

Federal benefit is not actually paid or

is paid and then’ terminated. The

undersigned notes that subsequent to

receiving worker's compensation benefits,

he actually drew his Civil Service

annuity. It is further noted that when

his worker's compensation benefits ceased

for a period, he reverted to Civil

Service benefits until the workers's

compensation was once again reinstated.

Thus, this action clearly demonstrates

that the claimant's "eligibility" was

always present and therefore, the

decision of the Administration is

correct.

z¢ is the conclusion of this

Administrative Law Judge that’ the

claimant is not fully insured as he lacks

55

the necessary quarters of coverage and

therefore, he is not eligible for

retirement irisurance benefits.

FINDINGS

After careful consideration of the entire

record, the Administrative Law Judge

makes the following finding:

2 The claimant filed an application

for retirement insurance benefits on x

October 8, 1986.

2. The claimant requires 36 quarter of

coverage for fully insured status.

a The claimant's earnings record may

not be credited with additional

wages or quarters of coverage for

the years 1937 through 1942 or from

56

— oo

September 6, 1943 through May 1,

1946.

DECISION

It is the decision of the Administrative

Law Judge that the claimant is not a

fully insured individual and, therefore,

is not entitled to retirement insurance

benefits for which application was filed

on October 8, 1986.

Timothy J. O'Leary

Administrative Law Judge

February 11, 1988

Date

57

APPENDIX 4

7 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

March 22, 1991

ROY H. WARREN,

Plaintiff,

Wa No. 88-2502-TuA

OTIS W. BOWEN,

SECRETARY

Defendant.

+e e + ee *

ORDER ON OBJECTIONS TO THE MAGISTRATE'S

REPORT AND RECOMMENDATION

Presently before the court are the

plaintiff's objections to United States B

Magistrate James H. Allen's Report and

Recommendation ("Report"). The plaintiff

seeks judicial review of an adverse

decision by the Social Security

Administration ("Secretary") on his claim

for social security retirement benefits.

The magistrate recommended dismissal of

the plaintiff's complaint. This court

reviews de novo those matters contained

58

in the Report of the magistrate to which

objection is timely made. A brief

statement of the pertinent facts can be

found in the magistrate's Report which is

incorporated into this Order by

reference. The plaintiff's objections

will be examined individually.

Objection 1:

The Report relies upon a material

factual error.

The Plaintiff alleges that the

Report is in error when it states that

the plaintiff "apparently applied to the

Social Security Retirement? System* for

retirement income to begin as of March

au, 2960 «... .% (Report, p. 4). The

* Apparently the term Social

Security Retirement System has be

substituted for the term Civil Service

Retirement System [this note does not

appear in the original text }

59

plaintiff contends that the government,

acting on its own erroneously terminated

his federal workers's compensation

benefits in March 1980 and transferred

him to the Civil Service Retirement

System. The plaintiff states that he is

being "denied social security retirement

benefits due to error on the part of the

government, and not due to any action on

his part."

The court acknowledges that there is no

evidence in the record that the plaintiff

applied for Civil Service Retirement

Benefits in 1980 or at any other time.

The magistrate's statement that he

apparently applied for Civil Service

Retirement Benefits in 1980 is, however,

immaterial to the ultimate resolution of

the case.

60

Objection II: The application

of 42 U.S.C. Sec. 417(a)(1)(B) to

this case constitutes an error of Law.

The plaintiff contends that 42

U.S.C. Sec 417(a) (1) (B) should never have

been applied to his case. It was

applied, he alleges, through the

government's own error which it later

acknowledged. The plaintiff further

contends that the inappropriate

application of the statute, in effect,

precludes him from utilizing his in

service time in computing his eligibility

for social security retirement benefits

or any retirement program. The plaintiff

states that no valid determination of his

eligibility for Civil Service Retirement

Benefits has ever been made or sought.

The magistrate submitted that "the

test is not whether plaintiff applied

for, and received, benefits from another

agency

or instrumentality of the United states,

which benefits were based in whole or in

part on World War II active duty service

time. Rather, the test is whether such a

benefit ‘has been determined by such

agency or instrumentality to be payable

by it. ..* 42 U.S.C. Sec. 417(A)(2)."

The magistrate noted that the Civil

Service Retirement System had made such a

determination and that the decision of

the Secretary was consistent with the

language of 42 U.S.C. Sec. 417(a) and

with his regulations. is

The court finds substantial evidence

to support the Secretary's position and

no legal error and concurs with the

decision expressed by the magistrate on

this issue. While there is no evidence

62

that the plaintiff applied for Civil

Service Retirement Benefits, a review of

the record reveals no evidence that the

plaintiff objected to the receipt of

Civil Service Retirement Benefits in

1971-72 or in 1980-81 or sought an

administrative remedy through the Civil

Service Commission. If the Civil Service

Commission made an erroneous retirement

eligibility determination using’ the

plaintiff's active duty military service

to compute the entitlement, the plaintiff

can, if possible, seek administrative

review and correction within the Civil

Service System.

63

The plaintiff contends that 20

C.F.R. sec. 404.1342(c) goes beyond the

scope of the applicable statute and is

inappropriately applied in this case.

The regulation states:

You do not get wage credits for the

World War II _ period if another

Federal benefit (other than one

payable by the Veterans

Administration) is determined by a

Federal agency of an instrumentality

owned entirely by the United States

to be payable to you, even though

the Federal benefit is not actually

paid or is paid and then terminated,

based in part on your active service

during the World War II _ period

except as explained in Sec.

404.1343.

20 C.F.R. Sec. 404.1342 (c)

64

The court finds 20 C.F.R. Sec.

404.1342(c) to be consistent with 42

U.S.C. Sec. 417 and appropriately applied

in this case. Those portions of the

magistrate's Report and Recommendation

not inconsistent with this Order are

incorporated by reference and adopted by

the court. The court finds that the

decision of the Secretary is supported by

Substantial evidence and that there is no

legal error. The Plaintiff's complaint

is dismissed.

IT IS SO ORDERED this 2ist day of

March, 1991.

JEROME TURNER

UNITED STATES DISTRICT JUDGE

65