* District Judge of the Southern District of Texas, sitting by designation.

* * Pursuant to 5th Cir. R. 47.5, the court has determ ined th at this opinio n should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED September 15, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30907

EDUARDO FERNANDEZ, Pl aint iff- Appellant,

versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

Appeal from the United States District Court fo r the Eastern District of Louisiana Before SMITH and STEWART, Circuit Judges, and HANEN, * District Judge. PER CURIAM: ** Eduardo Fernandez challenged a determ inat io n by the Soci al Security Com missio ner th at his reti rement benefit s should be reduced under the Windfall El iminat io n Provi sio n (“WEP”), 42 U.S.C. § 415(a)(7), on the bases th at, alt ernatively, the provision does not apply to him, the provision is an unconstitutional deprivation of property , the provision is an ex post facto law, or the Com missio ner’s int erpretation of the provision is unconstitutional under the Fift h Amendment

. The district court rejected all of Fernandez’s challenges to the reduction, and we affirm the district court’s ruling.1 The district court waived the exhaustion requirement, and that issue is not before this court. 2 I. FACTUAL AND PROCEDURAL HISTORY Fernandez was born on December 19, 1926, and attained the age of sixt y- five in 1991. Also in 1991, he started receiving federal soci al security reti rement (“RSI”) benefits based on his employment between 1970 and 1982. In 2000, he began receiving additional retirement benefits from

a p ension plan based on hi s employment between 1978 and 1999 for the State of Louisiana. The Com missio ner of Soci al Security notified Fernandez in 2002 that hi s RSI benefits were being permanently reduced under the WEP because of his pension benefit s and th at his RSI benefits would be tem porarily reduced even further to com pensate fo r the overp ayment s that Fernandez received from 2000 until the application of the WEP to him in 2002. Fernandez appealed this reduction to an administ rative law judge who denied his claims. He appealed th at decision to the Appeals Council, which has not yet ruled on his claim. 1 Fernandez filed suit in federal court on September 5, 2003. In 2005, a magistrate judge reco mmended that Fernandez’s suit be dismissed, and the district court agreed. Fernandez filed a timely appeal with this court. II. DISCUSSION In 1983 Congress enacted 42 U.S.C. § 415(a)(7), the WEP, which provided th at the “primary insurance amo unt” of certain individuals entitled to benefits must be “computed or recomputed” in accordance with § 415(a)(7)(B). The relevant parts of the provision apply to any individual who: (i) attains age 62 after 1985 . . . and who fir st became eligible aft er 1985 for a monthly periodic payment . . . which is based in whole or in part upon his or her earnings for service which did no t3

constitute “emplo yment ,” as defined in section 410 of this title for purposes of this subchapter. The WEP therefore “applies to any individual who earned both covered and noncovered wages. The WEP was enacted to eliminat e the windfall such an individual would enjoy in the absence of such a provision.” Das v. Dep’t of Health and Human Servs ., 17 F.3d 1250, 1253 (9th Cir. 1994). Fernandez’s fir st contention is th at the WEP does not apply to him because he sati sfied all the requirements necessary to earn RSI benefit s before the WEP was enacted. Fernandez asserts that in order fo r the WEP to retroactively restrict his benefit s, t h ere must be a provision th at specifically ment io ns th ose already eligible fo r benefit s but who have not yet reached the required age. The WEP applies if, prior to 1986, an individual had not yet reached the age of sixt y- two, regardless of whether

or not the individual qualified to receive RSI benefit s upon reti rement age prior to the enactment of the WEP. The eligibilit y provision applies directly to Fernandez who turned sixty-two after 1985 and became eligible aft er 1985 fo r a reti rement benefit th at was not based on employment eligible fo r RSI benefit s. Therefore, Fernandez’s benefits were correctly reduced according to the provisions of the WEP. Fernandez next argues that the WEP is an unconstitutional deprivation of property because his right to RSI benefit s had vested. This court has rejected attacks on the retroactive application of soci al security benefit changes, holding th at “social security benefit s [ ] are not contractual and may be alt ered or ev en eliminat ed at any time” and that an individual has “no vested property or contractual rights in soci al security benefit s.” B row n v. Apfel , 192 F.3d 492, 497 (5th Cir. 1999); see also Flemming v. Nestor , 363 U.S. 603, 611 (1960). Nor do we find persuasive Fernandez’s contention that the RSI benefits are substantively different th an the Supplemental Security Income2 Alt hough “t he Fift h Amendment contains no equal protection clause, it does fo rbid discriminat io n

th at is ‘so unjustifiable as to be vio lat ive of due process.’” Schneider v. Rusk , 377 U.S. 163, 168 (1964) (quoting Bolling v. Sharpe , 347 U.S. 497, 499 (1954)).
3 While t his court has not ruled specifically on the validit y of this int erpretation of the WEP in a published opinio n, we accept as persuasive precedent the Nint h Circuit’s decision in Das , 17 F.3d at 1255-56, and note th at as long as the Com missio ner’s interpretation is reasonable, it is entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council , 467 U.S. 837, 844 (1984). 4 benefit s at i ssue in Brow

n . The WEP does not constitute an unconstitutional taking of property or a breach of contract by the U.S. government. Fernandez also contests the reduction of his benefit s because the reduction is an ex post facto law. The prohibit io n against ex post facto laws applies only to laws that are criminal or penal in nature. S ee, e.g., Smith v. Doe , 538 U.S. 84, 92 (2003). The Social Security Act is not criminal or penal as applied to Fernandez. Thus, Fernandez has not made out a valid claim that the application of the WEP to his benefits violates the constitutional prohibition against ex post facto laws. Finally, Fernandez argues th at the Com missio ner’s int erpretation of t he WEP is discriminat ory2 and results in the WEP being unconstitutional as applied to him. Fernandez contends th at the Com

missio ner int erprets the WEP as applying only to those who were el igible fo r RSI benefit s before 1986 and not applying to th ose who were eligible fo r private pension benefit s before 1986. However, Fernandez’s description of the Commissio ner’s interpretation is incorrect. The Com missio ner has int erpreted the WEP as app lying if a person has not met all the prerequisites, including the age prerequisite, necessary to receive benefit s. 3 The WEP does apply to th ose who are eligible fo r benefit s in a non-covered pension syst em, regardless of when they became eligible, if they did not reach the age o f retirem ent before January 1, 1986. S ee, e.g., Stroup v. Barnhart , 327 F.3d 1258 (11th Cir. 2003) (appl ying t he WEP to a former police officer who was5

eligible fo r pension benefit s prior to 19 86 and onl y qualified fo r RSI benefits after 1985). For the WEP t o be in inapplicable to a specific case, a person must have had a p resent right to receive b enefit s before 1986, regardless of whether that person is covered by Social Security or a private pension fund. Because those who were covered under private pension systems before 1986 and those covered under RSI benefit s before 1986 are treated identically under the Co mmissio ner’s int erpretation of the WEP, there is no discriminat io n of the kind Fernandez alleges and thus no Fift h Amendment claim. III. CONCLUSION For the above reasons, we AFFIRM the district court’s dismissal of Fernandez’s claims.