Summaries of Selected Opinions, 0620 COBJ, Vol. 49, No. 6 Pg. 83

PositionVol. 49, 6 [Page 83]

49 Colo.Law. 83

Summaries of Selected Opinions

No. Vol. 49, No. 6 [Page 83]

Colorado Lawyer

June, 2020


No. 18-3240. Kientz v. Commissioner, SSA.

4/1/2020. D.Kan. Judge Carson. Social Security Retirement Benefits—Windfall Elimination Provision—Uniformed Services Exception.

Plaintiff served as a dual service technician with the Kansas Army National Guard for nearly 30 years. A dual service technician is a hybrid role that includes civilian and military responsibilities. Plaintiff worked primarily as a mechanic and simultaneously served as a member of the National Guard, a second job with separate pay and responsibilities. He paid Social Security taxes on the National Guard wages but not on his civil service pay. Upon plaintiff's retirement, the Social Security Administration (SSA) applied the windfall elimination provision (WEP) to proportionally reduce his Social Security retirement benefits. Plaintiff unsuccessfully appealed the reduction to the SSA. The district court ultimately held that plaintiff's Social Security retirement benefits were subject to the WEP because his civil service pension was not based wholly on service as a member of the uniformed services.

On appeal, plaintiff contended that the WEP's uniformed services exception applied to his dual service technician position. He maintained that his civil service pension was based wholly on his service in the National Guard because Congress required Guard membership as a condition of holding the dual service technician position. The word "wholly" in the uniformed services exception indicates that a qualifying pension payment must be entirely or exclusively from military service. Here, plaintiff's dual status technician work was at least partially distinct from the performance of his military duties, and he received separate compensation and separate pensions for performing those distinct roles. Thus, plaintiff's civil service pension is not wholly based on service as a member of a uniformed service, and his pension payments are therefore subject to the WEP. The judgment was affirmed.

No. 19-4008. United States v. Mayville.

4/7/2020. D.Utah. Judge Baldock. Fourth Amendment—Criminal History Check—Reasonableness.

Trooper Tripodi stopped defendant for speeding and noticed that he was hunched over in his vehicle as if trying to hide something. During their initial interaction the trooper noted defendant app eared drowsy or confused, he had difficulty locating paperwork, and he couldn't produce a vehicle registration. Trooper Tripodi returned to his patrol car and asked dispatch to run a criminal history check on defendant and dispatch a drug dog. Trooper Mackleprang arrived with his drug dog and asked defendant to exit the vehicle. Defendant initially refused, but ultimately exited the vehicle, and the dog alerted to a narcotics odor in the vehicle. Less than 30 seconds later dispatch responded that defendant had a criminal record. The entire initial traffic stop lasted approximately 19 minutes.

The troopers then searched defendant's vehicle and discovered two guns, one with a silencer; methamphetamine; and heroin. A grand jury indicted defendant for possession of methamphetamine with intent to distribute, possession of heroin with intent to...

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