CONCLUSION

The Court holds that the WEP is rationally related to a
legitimate government purpose, and thus, does not violate the Equal
Protection Clause of the Fourteenth Amendment. Therefore, the WEP
is constitutional, both on its face and as applied in Mr. Bowman’s
situation.

IT IS HEREBY ORDERED that Mr. Bowman’s Motion for Summary
Judgment be, and the same hereby is, DENIED.

IT IS FURTHER ORDERED that the Commissioner’s Motion for

Summary Judgment be, and the same hereby is, GRANTED.

DATED: August 15, 2002 E N T E R:

Qhiu.0

ARLANDER KEYS _)
United States Magistrate Judge

13


system. (R. at 72-73.) Mr. Bowman chose to participate in the
social security system, thus, his earnings from his employment with
the IDPA were from covered employment. (R. at 73.)

Mr. Bowman was born on October 7, 1933. (R. at 25.) on
January 1, 1988, Mr. Bowman was eligible to retire and receive his
CCDPA pension, because he was over 55 years of age. (R. at 14.)
Prior to January 1, 1988, former CCDPA employees must have been at
least 55 years old to be eligible to receive their pensions. (Id.)
However, the age requirement changed, effective January 1, 1988,
allowing employees to now retire and receive their CCDPA pension at
age 50 if they had 10 years of service with the CCDPA. (Id.)

Mr. Bowman currently receives two pensions. (R. at 28, 30.)
One pension is paid to him based on his covered employment with the
IDPA from January 1974 through December 1997. (R. at 20, 52.) The
other pension is paid to him for his noncovered employment with the
CCDPA from September 1959 through December 1973. (R. at 20, 28,
52.)

Mr. Bowman became entitled to social security benefits
beginning in February 1998. (R. at 12). His benefit amount was
$996 per month ~ an amount that was reduced, because the SSA found
that he was entitled to both social security benefits and a pension
based on noncovered employment, or earnings that were not covered

by social security. (Id.)


rationally related to the legitimate goals of the legislature.

The plaintiff in Das worked for the government, earned noncovered
wages and was eligible for a federal pension. Jd. at 1253. He
also worked in the private sector for a substantial number of
years, where his wages were covered by the social security program.
Id. The plaintiff alleged that the reduction in his social
security benefits pursuant to the WEP denied him equal protection
of the law, because the WEP treats differently individuals who have
similar aggregate lifetime earnings. Id. at 1255. The Court held
that the legislature had a legitimate purpose of preventing a
windfall to those individuals entitled to receive pensions for
noncovered employment as well as social security benefits for
covered employment. Id.

The Second Circuit arrived at the same conclusion as the Ninth
Circuit in holding that the WEP withstands constitutional scrutiny.
Rudykoff v. Apfel, 193 F.3d 579, 581 (2nd Cir. 1999). Quoting the
language in Das, the Second Circuit ruled that the WEP rationally
furthered the legislature’s legitimate goal of eliminating the
windfall to individuals who would receive social security benefits
and “pensions based on both covered and noncovered employment.”
Rudykoff, 193 F.3d at 581 (quoting Das, 17 F.3d at 1255). The
plaintiff in Rudykoff was entitled to both a government pension and

social security benefits from his covered employment in the private


is supported by substantial evidence and based upon proper legal
criteria. Ehrhart v. Sec’y of Health and Human Servs., 969 F.2d
534, 538 (7th Cir. 1992).

WINDFALL ELIMINATION PROVISION

The WEP reduces the amount of social security benefits to
individuals who are entitled to both social security benefits based
on covered employment and a pension from a government entity based
on noncovered employment. 42 U.S.C. § 415(a) (7) (2002). The WEP
only applies to those individuals who became entitled to their
government pensions after 1985. Id.

Congress enacted the WEP in order to eliminate the windfall
that arises when individuals “split their careers between
employment in which their earnings were taxed for social security
and other employment, such as [government] employment, in which
their earnings were exempt from social security.” Rudykoff v.
Apfel, 193 F.3d 579,580-81 (2nd. Cir. 1999). Congress reasoned
that an overlap of benefits would occur, because the civil service
pensions paid to government employees “are generally designed to
take the place both of social security and a private pension plan
for workers who remain in government employment throughout their
careers.” H.R. Rep. No. 25, at 21-22 (1983), reprinted in 1983

U.S.C.C.A.N. 219, 239-40.


At the hearing before the ALJ, Mr. Bowman did not contest
that, on its face, the WEP applied to him nor does he contend that
the SSA incorrectly calculated his Social security benefits based
on the WEP. (R. at 80-83.) Mr. Bowman admitted that he was
ineligible to retire and receive his pension from CCDPA prior to
January 1, 1988. (R. at 82-83.) Mr. Bowman reasserted his
contention that the WEP is generally an “unfair” and “wrong” law
- especially as applied to him and similarly situated individuals
receiving both covered social security benefits and a government
pension. (R. at 41-42.) The ALJ concluded that he did not have
the authority to determine the constitutional validity of the WEP,
which the ALJ concluded was the actual remedy Mr. Bowman sought,
and informed Mr. Bowman that constitutional issues could only be
brought before a federal district court. (R. at 22.) The ALJ
ultimately ruled that the SSA did not incorrectly calculate Mr.
Bowman’s social security benefits, and found that the WEP applied
in Mr. Bowman’s case based on the ALJ’s findings that Mr. Bowman
was entitled to both social security benefits and a pension from
noncovered employment. (R. at 24.)

STANDARD OF REVIEW

The Commissioner’s duty is to interpret and apply the Social

Security Act (the “Act”). Schweiker v. Gray Panthers, 453 U.S. 34,

43 (1984). The Court will uphold the ALJ’s decision if the decision


However, Congress is prohibited from enacting any provisions under
the Act, which would result in withholding benefits to an
individual, that create “a patently arbitrary classification,
utterly lacking in rational justification.” Id.

Thus, the Court will uphold a classification under the Act as
consistent with the Equal Protection Clause of the Fourteenth
Amendment if it is “rationally based and free from invidious
discrimination.” Dandridge v. Williams, 397 U.S. 471, 487 (1970).
The Supreme Court has held that, as long as “the classification has
some ‘reasonable basis,’ it does not offend the Constitution simply
because the classification ‘is not made with mathematical nicety or
because in practice it results in some inequality.’” Id. (quoting
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)).
Federal courts do not have the power under the Fourteenth Amendment
to “second-guess” a state’s allocation of funds for public or
social welfare programs. Dandridge, 397 U.S. at 485.

Neither the United States Supreme Court nor the Seventh
Circuit has ruled on the issue of the WEP’s constitutionality,
therefore, this issue is one of first impression in this circuit.
However, under similar circumstances, both the Ninth and the Second
Circuits have held that the WEP withstands constitutional scrutiny.

In Das v. Department of Health & Human Services, 17 F.3d 1250,

1255 (9th Cir. 1994), the Ninth Circuit held that the WEP is


‘# Miowte Onder Rorm (06/97)

SS United States District Court, Northern District of Illinois

Nesaateet fee | Ariander Keys | Sut

CASE NUMBER 01 C 8667 DATE 8/15/2002
CASE Robert Bowman vs. Jo Anne Barnhart
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) Q Brief in support of motion due

(3) oO Answer briefto motion due___. Reply to answer briefdue___.

(4) oO Ruling/Hearing on__setfor__at

(5) im} Status hearing[held/continued to] [set for/re-set for]on___setfor___—_att

(6) Qa Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__——sat_—
(7) oO Trial[set for/re-set for]on___at

(8) QO [Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) CO FRCP41(a)(2).

ai) @ [For further detail see order attached to the original minute order.]

(10) xf [Other docket entry] Memorandum Opinion and Order entered. Plaintiff’s Motion for Summary
Judgment [#9] is denied; the Commissioner’s Motion for Summary Judgment [#14] is granted. AWW

No notices required, advised in open court.
2

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Clause.

Further, the Court does not find that the “substantial
earnings rule” is arbitrary or discriminatory. The purpose of the
“substantial earnings rule” is to lessen the burden on individuals
whose social security benefits were subject to the WEP. 42 U.S.C.
§ 415 (2002). Although it appears that social security earnings
from earlier years are weighted differently than social security
earnings from later years, the Court reminds Mr. Bowman that the
WEP need not be perfect. The “substantial earnings rule” need not
result in “mathematical nicety” in order to withstand
constitutional scrutiny.

Mr. Bowman contends that the WEP should not be applied to his
social security benefits, even if the Court ultimately concludes
that the WEP is constitutional. (R. at 11.) Mr. Bowman argues
that it is unfair to reduce his social security benefits, because
when he opted to contribute to social security in 1974, the WEP did
not exist. (Id.) Mr. Bowman further contends that, had he been
eligible for his CCDPA pension before 1985, he would have fallen
under a WEP exemption. (Id.) He finds particularly vexing that
CCDPA changed its rule in 1988 and allowed for pensions at age 50.
(Id.) Mr. Bowman argues that, under the CCDPA’s new law, he would
have met the requirements for retirement as early as 1983 and would

not be currently subject to the WEP. (Id.)

11


sector. 193 F.3d at 580. He alleged that the WEP was
unconstitutional, because it discriminated against federal
employees. Id.

Consistent with the findings of both the Ninth and Second
Circuits, this Court finds that the WEP survives rational basis
scrutiny. The legislature’s desire to eliminate the overlap of
retirement benefits that would occur when a government employee
receives both a civil service pension and social security benefits
for private sector employment is a legitimate goal. The WEP is
rationally related to that goal by preventing government employees
from obtaining a windfall of retirement benefits that individuals
in the private sector typically do not receive. Further, the
treatment of government employees is not irrational, because civil
service pensions were designed to take the place of, not
supplement, social security and private pensions for those
individuals remaining in government employment throughout their
careers.

The Court cannot second-guess Congress’s decision to exempt
certain individuals, such as railroad workers, from the WEP’s
application. In the absence of invidious discrimination or
irrational classification of individuals who are not subject to
exemption, the Court cannot conclude that the WEP, or its

exemptions, violate the Fourteenth Amendment’s Equal Protection

10


DISCUSSION

Mr. Bowman sets forth a host of reasons why he believes the
WEP is unconstitutional. For example, he asserts that the WEP does
not “apply uniformly to all people in similar circumstances, but
arbitrarily exempts some groups” from its application. (R. at 10.)
He notes that the WEP applies to government employees only and not
to individuals with pensions from private sector employment. (R.
at 9.) In addition, Mr. Bowman contends that the WEP is
discriminatory, because individuals who would otherwise be subject
to the WEP are exempt if they receive a pension from railroad work
or if they were hired after December 31, 1983. {Id.) In
addition, Mr. Bowman argues that the “substantial earnings rule” of
the WEP, which lessens the reduction of one’s social security
benefits, does not equally weigh social security taxes paid in
earlier years, which were low, against social security taxes paid
in later years, which are very high. (Id.) Thus, Mr. Bowman
argues that the “substantial earnings rule” is “flagrantly unfair
and arbitrary.” (Id.)

Social security benefits are not property rights or
contractual rights, and Congress may “alter, amend, or repeal any
provision” of the Social Security Act (the “Act”). Flemming v.
Nestor, 363 U.S. 603, 611 (1960) (internal citations omitted);

United States R.R. Retire. Bd. v. Fritz, 449 U.S. 166, 174 (1980).


(Pl.’s Mot. Summ. J. at 1; Pl.’s Resp. Def.’s Mot. Summ. J. at 1.)
In the alternative, Mr. Bowman asks the Court to find that, on the
basis of “equity and fairness,” the WEP should not be applied to
him and that his social security benefits should not be reduced.
(Pl.’s Mot. Summ. J. at 1.)

STATEMENT OF FACTS

Mr. Bowman worked for the Cook County Department of Public
Aid, (the “CCDPA”) from September 11, 1959 through December 31,
1973. (R. at 8.) In approximately January 1974, the CCDPA merged
into the Illinois Department of Public Aid (the “IDPA”). (Id.)
Thereafter, Mr. Bowman was employed by the IDPA from January 1,
1974 to December 1997. (R. at 30.)

As an employee of the CCDPA, Mr. Bowman did not pay social
security taxes, and therefore, his earnings from the CCDPA were
from noncovered employment. (R. at 52, 72.) Prior to the merger of
the CCDPA into the IDPA, Mr. Bowman had the choice to either
participate in the social security program through the IDPA or to

continue to refrain from participating in the social security

1(...continued)
However, the Court assumes that Mr. Bowman raises a
Fourteenth Amendment claim by asserting that he is being
denied “equal protection of the laws.” (See, generally,
Pl.’s Resp. Def’s Mot. Summ. J.) Thus, the Court will
hereinafter analyze this case as a Fourteenth Amendment
Equal Protection claim.


AO 450(Rev. 5/85 Judgment in a Civil Case

United States District Court
Northern District of Illinois

Eastern Division

Robert Bowman JUDGMENT IN A CIVIL CASE
v. Case Number: 01 C 8667
Jo Anne Barnhart

Oo Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

Oo Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s motion for summary judgment
is denied, the Commissioner’s motion for summary judgment is granted.

Michael W. Dobbins, Clerk of Court

a

Date: 8/15/2002

Alicia Castillo, Deputy Clerk


Mr. Bowman filed an application for social security retirement
benefits on January 16, 1998. (R. at 25.) Mr. Bowman received a
notice of award from the SSA, informing him that his social
security benefits are subject to the WEP and were, therefore,
reduced, because he was simultaneously entitled to social security
benefits and a pension based on noncovered employment. (R. at
43.) Mr. Bowman filed a timely request for reconsideration with
the SSA. (R. at 8.) However, the SSA affirmed its decision. (R.
at 50.) Thereafter, Mr. Bowman requested, and was granted, a
hearing before an administrative law judge (the “ALJ”). (R. at
62.) On February 16, 2000, the ALJ held that the SSA properly
calculated Mr. Bowman’s social security benefits. (R. at 24.) The
Appeals Council denied Mr. Bowman’s request for review of the ALJ’s
decision. (R. at 2.) Therefore, the ALJ’s decision is the final
determination of the Commissioner.

Mr. Bowman seeks the Court’s review of the ALJ's decision
pursuant to Section 205(g)of the Social Security Act, as amended,
42 U.S.C. § 405(g). Additionally, Mr. Bowman asks this Court to
find that the WEP is violative of the Equal Protection Clause of

the Fourteenth Amendment and should be declared unconstitutional.?

1 Mr. Bowman, filing pro se, never specifically refers
to either the Fourteenth Amendment or the Equal Protection
Clause in any of his filings with the SSA or with the Court.

(continued...)


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT P. BOWMAN, Case No. 01 C 8667
Plaintiff,

Magistrate Judge
Arlander Keys

v.

JO ANNE B. BARNHART,
Commissioner of Social
Security,

we 1 g int

Defendant.

MEMORANDUM OPINION AND ORDER

The Plaintiff, Robert P. Bowman, moves the Court for summary
judgment pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure. The Defendant, Commissioner of Social Security (the
“Commissioner”), has filed a cross-motion for summary judgment.
For the reasons set forth below, Mr. Bowman’s motion is denied, and
the Commissioner’s motion is granted.

PROCEDURAL HISTORY

Mr. Bowman has exhausted his administrative remedies with the
Social Security Administration (the “SSA”) and asks the Court to
declare unconstitutional, either on its face or as applied to him,
the Windfall Elimination Provision of the Social Security Act, 42
U.S.C. § 415(a) (7) (2002) (the “WEP”). The procedural history of

this case is as follows:


The Court rejects Mr. Bowman’s arguments that the WEP should
not be applied to him. Congress was within its right to enact the
WEP, and although the provision is disadvantageous to Mr. Bowman,
the WEP was in place at the time he was first entitled to his CCDPA
pension in 1988, and therefore must be applied to him. Further,
the CCDPA lawfully altered its age eligibility requirement for
pensions after Mr. Bowman had already been deemed eligible for a
pension on January 1, 1988. Although the Court sympathizes with
Mr. Bowman’s plight, the Court does not find any invidious
discrimination against Mr. Bowman, and as stated above, the WEP
does not create a patently arbitrary classification. Undoubtedly,
other individuals have found themselves in the same position as Mr.
Bowman when the CCDPA changed its retirement date to 1983.
However, neither those individuals nor Mr. Bowman can rectify the
matter by seeking to have the CCDPA retroactively apply to them or

to have the WEP declared unconstitutional.’

2 The Court ends its analysis here and declines to
review the ALJ’s opinion. Mr. Bowman’s own admission that,
on its face, the WEP applies to him and that the SSA
correctly calculated his social security benefits using the
modified WEP formula, obviates the necessity for the Court
to review the ALJ’s decision on these uncontested matters.
Further, Mr. Bowman’s Motion for Summary Judgment does not
raise any objections to the ALJ’s findings or ultimate
conclusions. Therefore, the constitutional issues are the
only issues properly before the Court. However, for
procedural purposes, the Court hereby affirms the ALJ's
decision.

12