Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1985)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1289 (9th Cir. 1985)

Charles A. KERR, II, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary Health and Human Services,Defendant-Appellee.

No. 87-3994.

United States Court of Appeals, Ninth Circuit.

Submitted June 22, 1988.* July 21, 1988.

Before KOELSCH, KILKENNY, and FARRIS, Circuit Judges.


We have here the not unusual case of a pro per litigant whose supposed grievance results from the lack of expertise in a particular phase of a Social Security program.

Charles A. Kerr, II, the appellant, contends (erroneously) that the Secretary has "short changed" him with respect to old age insurance benefits. Such confusion is perhaps understandable when one studies the many statutes and regulations dealing with the subject. They are detailed, lengthy and cross-referenced to a degree which renders singling out those pertinent laws nearly impossible, even for one well versed in such matters.

In this instance, the facts are not in dispute and the pertinent law, when ferreted from the great mass of provisions, is clear and manifests the conclusion that Kerr has not been overreached and that the Secretary's decision was correct.

So far as need be noticed, it appears that Kerr, although he had not arrived at the retirement age of 65 years (42 U.S.C. § 416(1) (1) (A)), when he applied for old age retirement insurance benefits on January 3, 1985, nevertheless had become eligible for retirement benefits nearly three years earlier at age 62. 42 U.S.C. §§ 402(a) (2) & (3) (B).

Had Kerr applied for benefits immediately upon becoming eligible, his monthly benefits would have been smaller than those he has received under his later application. 42 U.S.C. § 402(q) (1) & (6). The reason is this: the purpose of the retirement program is to insure that a covered individual receives substantially the same total sum in benefits over the remainder of his life whether he makes a claim immediately upon reaching the early age of eligibility or at a later time. See S.Rep.No. 425, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin.News 1855, 1856. Thus, one who applies for benefits commencing on a date prior to age 65, is not entitled to the same monthly amount as if he had waited until the later date. The monthly amount is calculated on the basis of the application's timing in relation to the applicant's true retirement age of 65. In case of "early" applications the Secretary makes the appropriate reduction in the amount. In the "long run" the total sum received by an applicant will be approximately the same regardless of his timing; he will "lose" nothing. Nor does the amount of the monthly benefits fluctuate once it is fixed. It remains the same as of the date of the application and the application does not operate retroactively. 42 U.S.C. § 402(j) (4) (A).

None of Kerr's remaining contentions has merit and of them but two warrant more than brief mention.

The Secretary lacks authority to inject himself into whatever dispute Kerr has with the Office of Personnel Management over the latter's calculation of Kerr's annuity for post-military service. The two agencies are separate. Granted, the amount arrived at by OPM, based upon its calculations, affected Kerr's old-age retirement benefits. The calculation itself and the fixing of the amount was not a matter for the Secretary but solely for that other agency.

Public Law 97-253 does not deal with Social Security retirement insurance benefits--in pertinent part it relates to annuities for military service and vests jurisdiction in such matters exclusively in the Office of Personnel Management.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3