                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                          F I L E D
                         IN THE UNITED STATES COURT OF APPEALS
                                                                                        September 15, 2006
                                     FOR THE FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk


                                              No. 05-30907



EDUARDO FERNANDEZ,
                                                                                    Plaintiff-Appellant,

                                                  versus

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



                              Appeal from the United States District Court
                                 for the Eastern District of Louisiana


Before SMITH and STEWART, Circuit Judges, and HANEN,* District Judge.

PER CURIAM:**

          Eduardo Fernandez challenged a determination by the Social Security Commissioner that his

retirement benefits should be reduced under the Windfall Elimination Provision (“WEP”), 42 U.S.C.

§ 415(a)(7), on the bases that, alternatively, 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 Commissioner’s

interpretation of the provision is unconstitutional under the Fifth Amendment. The district court

rejected all of Fernandez’s challenges to the reduction, and we affirm the district court’s ruling.


   *
       District Judge of the Southern District of Texas, sitting by designation.
   **
    Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
                             I. FACTUAL AND PROCEDURAL HISTORY

          Fernandez was born on December 19, 1926, and attained the age of sixty-five in 1991. Also

in 1991, he started receiving federal social security retirement (“RSI”) benefits based on his

employment between 1970 and 1982. In 2000, he began receiving additional retirement benefits from

a pension plan based on his employment between 1978 and 1999 for the State of Louisiana. The

Commissioner of Social Security notified Fernandez in 2002 that his RSI benefits were being

permanently reduced under the WEP because of his pension benefits and that his RSI benefits would

be temporarily reduced even further to compensate for the overpayments that Fernandez received

from 2000 until the application of the WEP to him in 2002.

          Fernandez appealed this reduction to an administrative law judge who denied his claims. He

appealed that 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 recommended 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 that the “primary

insurance amount” 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 first became eligible after 1985 for a monthly periodic payment . . . which

          is based in whole or in part upon his or her earnings for service which did not


   1
       The district court waived the exhaustion requirement, and that issue is not before this court.

                                                      2
        constitute “employment,” 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 eliminate 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 first contention is that the WEP does not apply to him because he satisfied all the

requirements necessary to earn RSI benefits before the WEP was enacted. Fernandez asserts that in

order for the WEP to retroactively restrict his benefits, there must be a provision that specifically

mentions those already eligible for benefits 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 sixty-two, regardless of whether

or not the individual qualified to receive RSI benefits upon retirement age prior to the enactment of

the WEP. The eligibility provision applies directly to Fernandez who turned sixty-two after 1985 and

became eligible after 1985 for a retirement benefit that was not based on employment eligible for RSI

benefits. 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 benefits had vested. This court has rejected attacks on the retroactive application of

social security benefit changes, holding that “social security benefits [ ] are not contractual and may

be altered or even eliminated at any time” and that an individual has “no vested property or

contractual rights in social security benefits.” Brown 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 than the Supplemental Security Income


                                                   3
benefits at issue in Brown. 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 benefits because the reduction is an ex post facto

law. The prohibition against ex post facto laws applies only to laws that are criminal or penal in

nature. See, 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 that the Commissioner’s interpretation of the WEP is

discriminatory2 and results in the WEP being unconstitutional as applied to him. Fernandez contends

that the Commissioner interprets the WEP as applying only to those who were eligible for RSI

benefits before 1986 and not applying to those who were eligible for private pension benefits before

1986.     However, Fernandez’s description of the Commissioner’s interpretation is incorrect.

          The Commissioner has interpreted the WEP as applying if a person has not met all the

prerequisites, including the age prerequisite, necessary to receive benefits.3 The WEP does apply to

those who are eligible for benefits in a non-covered pension system, regardless of when they became

eligible, if they did not reach the age of retirement before January 1, 1986. See, e.g., Stroup v.

Barnhart, 327 F.3d 1258 (11th Cir. 2003) (applying the WEP to a former police officer who was



  2
   Although “the Fifth Amendment contains no equal protection clause, it does forbid discrimination
that is ‘so unjustifiable as to be violative of due process.’” Schneider v. Rusk, 377 U.S. 163, 168
(1964) (quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).
      3
    While this court has not ruled specifically on the validity of this interpretation of the WEP in a
published opinion, we accept as persuasive precedent the Ninth Circuit’s decision in Das, 17 F.3d at
1255-56, and note that as long as the Commissioner’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
eligible for pension benefits prior to 1986 and only qualified for RSI benefits after 1985). For the

WEP to be in inapplicable to a specific case, a person must have had a present right to receive

benefits 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 benefits before 1986 are treated identically under the Commissioner’s

interpretation of the WEP, there is no discrimination of the kind Fernandez alleges and thus no Fifth

Amendment claim.

                                        III. CONCLUSION

       For the above reasons, we AFFIRM the district court’s dismissal of Fernandez’s claims.




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