NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNIE J. PEREZ, No. 20-15773
Plaintiff-Appellant, D.C. No. 2:18-cv-02737-MTL
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted March 3, 2021**
Submission Vacated March 9, 2021
Resubmitted January 14, 2022
Phoenix, Arizona
Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** 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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
During the pendency of this appeal, we issued our opinion in Larson v. Saul,
967 F.3d 914 (9th Cir. 2020). Joining the Sixth, Tenth, and Eleventh Circuits, we
held that the uniformed services exception to the Windfall Elimination Provision
(“WEP”) of 42 U.S.C. § 415(a)(7) does not apply to the Civil Service Retirement
System (“CSRS”) pensions of dual-status technicians of the National Guard. Id. at
921, 926; see Babcock v. Comm’r of Social Sec., 959 F.3d 210 (6th Cir. 2020),
Kientz v. Comm’r, SSA, 954 F.3d 1277 (10th Cir. 2020), Martin v. Social Sec.
Admin., Comm’r, 903 F.3d 1154 (11th Cir. 2018).
We held this case in abeyance pending the Supreme Court’s review of
Babcock. The Supreme Court has recently affirmed the Sixth Circuit, holding that
“civil-service pension payments fall outside the Social Security Act’s uniformed-
services exception because they are based on service in [a] civilian capacity.”
Babcock v. Kijazaki, 20-480, 2022 WL 119605, at *5 (Jan. 13, 2022). As a result,
Appellant, as a dual-status technician of the National Guard, is subject to the WEP
and the resulting reduction of his pension payment. See id.
The district court is AFFIRMED.
2