monthly social security retirement benefits. The provision applies where a wage earner with earnings covered by the social security system also has "non-covered" earnings, typically from federal and state civil service employment. See House Report (Ways and Means Committee) No. 98-25, 98th Cong., 1st Sess., 21-23, reprinted in 1983 U.S. Code Cong. & Ad. News 239-240; 20 C.F.R. § 404.213. In order to allow some time for workers to adjust their retirement plans, Congress determined that the provision applies only to individuals who first become "eligible" for a monthly periodic pension based on noncovered employment after 1985. Id.; see House Conference Report No. 98-47, 98th Cong., 1st Sess., 121 reprinted in 1983 U.S. Code Cong. & Ad. News 411.
The plaintiff contends that he became eligible to receive his federal civil service pension in 1981, prior to the effective date of the WEP (see Tr. 211). Plaintiff argues that he is not subject to § 415(a)(7) because the statute applies only to individuals who became eligible after 1985 to receive pensions based on employment not covered by social security. However, the SSA obtained undisputed information from the United States Office of Personnel Management which verifies that plaintiff first became eligible for a civil service pension, based on his service with the federal government, on February 1, 1988, the date on which he reached the age of 62. (Tr. 270; see Tr. 20, 227). According to 5 U.S.C. §§ 8336, 8338, an employee who separates from federal civil service after 5 years is entitled to an annuity beginning at the age of 62 years. Thus, the Secretary correctly concluded that the WEP was applicable in computing the amount of plaintiff's monthly social security benefits. Johnson v. Sullivan, No. 91-C-420-S, slip op. at 3-4 (W.D. Wis. Oct. 25, 1991).
B. Constitutionality of the Windfall Elimination Provision
Plaintiff also claims that 42 U.S.C. § 415(a)(7) violates the Due Process Clause of the Fifth Amendment of the Constitution since it does not afford him "equal opportunity to receive the full social security retirement benefit as received by an individual with only 'covered' employment" (Plaintiff's Motion for Judgment P 12). In the area of social welfare, a statutory classification does not violate due process if it is rationally based and free from invidious discrimination. E.g. Weinberger v. Salfi, 422 U.S. 749, 770, 45 L. Ed. 2d 522 , 95 S. Ct. 2457 (1975). Where economic and social welfare legislation is grounded in some rational basis, it is well settled that it does not offend due process simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 55 L. Ed. 369 , 31 S. Ct. 337 (1910). See also, Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 57 L. Ed. 730 , 33 S. Ct. 441 (1912) (recognizing that practical problems of government may justify rough, illogical, and unscientific accommodations).
The rational purpose behind the enactment of section 415(a)(7) is to eliminate a retirement windfall at the expense of the Social Security Trust Fund to individuals who are eligible to receive pensions based on both covered and noncovered employment. Plaintiff is exactly such an individual. According to the House Ways & Means Committee's report, federal and state civil service pensions, such as the one for which plaintiff is eligible, "are generally designed to take the place both of social security and a private pension plan for workers who remain in noncovered employment throughout their careers." H.R. No. 98-25, 98th Cong., 1st Sess. at 22, reprinted in 1983 U.S. Code Cong. & Ad. News at 239. Section 415(a)(7) is reasonably calculated to balance monthly pension benefits which result from a combination of covered and noncovered employment. The statute, enacted in 1983, applies only to individuals who first became eligible for social security and for government pensions after 1985. This provision is not arbitrary, as the plaintiff claims (Plaintiff's Motion for Judgment P 14), but reflects a reasonable congressional determination that individuals who previously anticipated a windfall be given some time to adjust their retirement plans. Section 415(a)(7) thus satisfies the rational basis test and is consistent with due process.
Based on the foregoing, the defendant's motion for summary judgment is GRANTED and the plaintiff's motion for summary judgment is DENIED.
WILLIAM A. INGRAM
United States District Judge
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