Ernie Perez v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2022
• Docket: 20-15773
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERNIE J. PEREZ, No. 20-15773

Plaintiff-Appellant, D.C. No. 2:18-cv-02737-MTL

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding

Submitted March 3, 2021** Submission Vacated March 9, 2021 Resubmitted January 14, 2022 Phoenix, Arizona

Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. During the pendency of this appeal, we issued our opinion in Larson v. Saul,

967 F.3d 914 (9th Cir. 2020). Joining the Sixth, Tenth, and Eleventh Circuits, we

held that the uniformed services exception to the Windfall Elimination Provision

(“WEP”) of 42 U.S.C. § 415(a)(7) does not apply to the Civil Service Retirement

System (“CSRS”) pensions of dual-status technicians of the National Guard. Id. at

921, 926; see 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).

We held this case in abeyance pending the Supreme Court’s review of

Babcock. The Supreme Court has recently affirmed the Sixth Circuit, holding that

“civil-service pension payments fall outside the Social Security Act’s uniformed-

services exception because they are based on service in [a] civilian capacity.”

Babcock v. Kijazaki, 20-480, 2022 WL 119605, at *5 (Jan. 13, 2022). As a result,

Appellant, as a dual-status technician of the National Guard, is subject to the WEP

and the resulting reduction of his pension payment. See id.

The district court is AFFIRMED.