UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCES MICHENER, No. 20-16834 Plaintiff-Appellant, D.C. No. v. 5:19-cv-04377- SVK KILOLO KIJAKAZI, Acting Commissioner of Social Security; SOCIAL SECURITY ADMINISTRATION, OPINION Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Susan G. Van Keulen, Magistrate Judge, Presiding

Argued and Submitted October 19, 2021 San Francisco, California

Filed December 30, 2021

Before: Paul J. Watford and Andrew D. Hurwitz, Circuit Judges, and M. Miller Baker, * Judge.

Opinion by Judge Hurwitz

* The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. 2 MICHENER V. KIJAKAZI

SUMMARY **

Social Security

The panel affirmed the district court’s summary judgment in favor of the Social Security Administration in a putative class action alleging that reducing the Social Security benefits of class members based on the receipt of a foreign social security pension violated the Windfall Elimination Program, its implementing regulation, and the Agreement Between the Government of the United States of America and the Government of Canada with Respect to Social Security.

Plaintiff Frances Michener is a citizen of both the United States and Canada, as was her late husband, Dr. Steven Rosell. From 1976 to 1990, they lived in Canada where Rosell worked and participated in the Canada Pension Plan. During that period, Rosell did not contribute to the Social Security system. In 1990, Rosell and Michener moved to the United States where Rosell paid Social Security taxes on his earnings until becoming disabled in 2012. Rosell then began receiving Social Security disability benefits, in addition to benefits under the Canada Pension Plan, and Michener later began receiving Social Security spousal benefits.

In June 2015, the Social Security Administration notified Rosell and Michener that their benefits would be reduced under the Windfall Elimination Program (“WEP’) because Rosell “received a pension based on work not covered by

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MICHENER V. KIJAKAZI 3 Social Security taxes,” and sought the return of $7,194.00 for past overpayment of benefits. After seeking reconsideration and review by an administrative law judge, plaintiffs filed this putative action in federal court.

WEP reduces the Social Security benefits of individuals who receive a pension for work not covered by the Social Security system. 42 U.S.C. § 415(a)(7). Under the WEP implementing regulation, noncovered employment includes “employment outside the United States which is not covered under the United States Social Security system.” 20 C.F.R. § 404.213(a)(3). The statute allows service in other countries, which ordinarily would not be covered by the Social Security system, to be designated as “employment”— and thereby excluded from the WEP—pursuant to a ”totalization arrangement” agreement entered into under 42 U.S.C. § 433 between the Social Security system and the corresponding system of a foreign country. Under a section 433 agreement, employment or service may result in a “period of coverage” under either the Social Security system or the foreign country’s system, “but not under both.” Id. § 433(c)(1)(B)(i). The United States and Canada have a section 433 agreement.

The panel determined that n