                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 11 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GAIL M. SCHNEYER,                                No. 12-56617

              Plaintiff - Appellant,             D.C. No. 5:11-cv-00965-JVS-SP

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                              Submitted June 6, 2014**
                                Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior 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 Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Gail Schneyer appeals the district court’s judgment affirming the decision of

the Commissioner of Social Security that the Government Pension Offset (“GPO”)

provision of the Social Security Act, 42 U.S.C. § 402(k)(5)(A), applied to

Schneyer’s spousal benefits under 42 U.S.C. § 402(b), and thereby reduced her

monthly benefit payment to zero. We have jurisdiction under 28 U.S.C. § 1291.

We review the decision of the district court de novo, Edlund v. Massanari, 253

F.3d 1152, 1156 (9th Cir. 2001), and the district court must affirm an

administrative agency’s factual conclusions so long as they are supported by

substantial evidence, but reviews decisions of law de novo, Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 882 (9th Cir. 2006). We affirm.

      The GPO provides that spousal benefits “shall be reduced (but not below

zero) by an amount equal to two-thirds of the amount of any monthly periodic

benefit payable to such individual for such month which is based upon such

individual's earnings while in the service of . . . any State.” 42 U.S.C. §

402(k)(5)(A). Schneyer receives a pension from the California State Teacher’s

Retirement System (CalSTRS), which was originally based on her earnings during

her employment with the Alhambra School District until her retirement in 1995. In

2000, the California Legislature created the Minimum Guarantee Monthly

Allowance (“MGMA”), Cal. Educ. Code § 24410.5, which established a minimum


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pension for retired state educators, with the amount of the pension calculated based

on an employee’s length of service, regardless of salary. The passage of the

MGMA increased Schneyer’s monthly pension by approximately $95.

      Schneyer argues 1) that the GPO applies only to pensions that are calculated

with reference to the amount of earnings an employee received while employed, 2)

that the MGMA is not calculated based on earnings, and 3) that because the

MGMA is higher than her previous earnings-based CalSTRS pension, the MGMA

replaced CalSTRS and made her eligible to receive spousal benefits without the

GPO. Assuming, arguendo, that her first two arguments are correct, we

nonetheless affirm the decision of the district court.1 The MGMA is not a stand-

alone pension, but an amendment to the existing CalSTRS pension regime. The

statutory provision that established the MGMA is but one chapter in a lengthy and

interconnected set of statutory provisions that set out the CalSTRS retirement

program. See Cal. Educ. Code §§ 22000-25115 (T. 1, D. 1., Pt. 13, “State

Teacher’s Retirement System”). CalSTRS informed its members of the MGMA

      1
         The Social Security Administration (“SSA”) contests both of the legal
theories offered by Schneyer. It argues that the GPO applies to all government
pensions, whether earnings- or service-based, and that even if the GPO applies
only to earnings-based pensions, the MGMA is in fact earnings based because it
calculates length of service based upon years of employment, which necessarily
entails at least some level of earnings. We need not reach these questions of
statutory interpretation, and will not do so here.

                                         -3-
program by repeatedly defining it not as a new or independent program, but as an

“increase” to the existing benefits package. For these reasons, the earnings-based

nature of the overall CalSTRS pension is not affected by the addition of a single

element that turns on length of service.

      Schneyer raises two other claims, both of which we reject. First, she argues

that the SSA is equitably estopped from opposing her suit because in a public

document, it restated the language of 42 U.S.C. § 402(k)(5)(A), noting that spousal

benefits would not be reduced if an otherwise eligible person is “receiving a

government pension that is not based on [that person’s] earnings.” SSA

Publication No. 05-10007. However, “[a] private party seeking estoppel against

the government must establish that: (1) affirmative misconduct going beyond mere

negligence has occurred; (2) the government's wrongful act will cause a serious

injustice; and (3) the public’s interest will not suffer undue damage by imposition

of the liability.” Weinfield v. United States, 8 F.3d 1415, 1419 (9th Cir. 1993)

(alterations and internal quotation marks omitted). Schneyer cannot show that any

misconduct or injustice has occurred based on the SSA’s accurate restatement of

the statute, and we decline to reverse the decision of the district court on this

ground.




                                           -4-
      Second, Schneyer requests an order that compels the SSA to release any

documents considered during the administrative review process that were not

included in the administrative record, and argues that the SSA’s prior failure to do

so violated her due process rights. 42 U.S.C. § 405(g) requires the SSA to file an

administrative record with the district court, which it did. Schneyer cites no

authority for further disclosure, and we decline to enter the order she requests.

      AFFIRMED.




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