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MESING v. SECRETARY OF HEALTH

October 8, 1970

Carl F. MESING, Plaintiff,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE OF the UNITED STATES OF AMERICA, Defendant


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 On November 22, 1965, plaintiff and his wife filed an application for retirement insurance benefits under § 202 of the Social Security Act, 42 U.S.C. § 402. On December 23, 1965, an award of retirement insurance benefits was authorized in the amount of $132.70 for plaintiff and $62.40 for his wife. This award was to be effective in August, 1965, but deductions were imposed upon plaintiff's award from that date and continue to the present. For the period August, 1965 to December, 1965, inclusive, plaintiff admitted that the deductions were proper, but for the period January, 1966 and thereafter plaintiff claimed that many of the deductions were improper and benefits should have been paid. A Request for Reconsideration was filed and his claims were again denied. A hearing was held, at plaintiff's request, before a hearing examiner of the Social Security Administration, Bureau of Hearings and Appeals, who also denied plaintiff's claims. On June 27, 1969, the Appeals Council of the Social Security Administration advised plaintiff that his request for a review of the hearing examiner's decision was denied; whereupon, pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g), plaintiff commenced this action to obtain a judicial review of the decision of the Secretary denying plaintiff's claim. With his answer to plaintiff's complaint, defendant filed a certified copy of the transcript of the record of proceedings before the Social Security Administration in compliance with § 205(g) of the Act, supra, and subsequently moved for summary judgment.

 Section 205(g), supra, provides in its pertinent part as follows:

 
"As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

 Based on these facts, plaintiff's position at the Social Security Administration hearing was that the compensation he receives as a tax collector is self-employment income. This point seems to be abandoned. *fn1" He argues in his brief in this court that the Secretary erred as a matter of law in finding that plaintiff rendered "services for wages" over $125 *fn2" in all months since January, 1966. *fn3"

 Section 211(c) of the Act, 42 U.S.C. § 411(c), provides that "the term 'trade or business', when used with reference to self-employment income or net earnings from self-employment * * * shall not include -- (1) The performance of the functions of a public office * *." (Emphasis supplied.) The term "public office" is explained in the regulations promulgated under authority of the Act, 20 C.F.R. § 404.1070(g), as "* * * any elective * * * office * * * of a state or its political subdivision * *." (Emphasis supplied.) The term "office" is not defined by the Act.

 Plaintiff testified that he is the elected tax collector for the Borough of Baldwin and School District of Baldwin-Whitehall. If the position of tax collector is a "public office", his compensation cannot be considered "income from self-employment" because of the express exclusion of § 211 of the Act, supra.

 Since the determination of plaintiff's status depends on the definition of "public office", and the Act and regulations do not completely define the term, it is appropriate to turn to the state law to find if a tax collector is the holder of a "public office". Folsom v. Pearsall, 245 F.2d 562 (9th Cir. 1957); Holland v. Ribicoff, 219 F. Supp. 274 (D. Or. 1962).

 The Supreme Court of Pennsylvania has held on numerous occasions that a collector of public monies holds a "public office". Commonwealth v. Evans, 74 Pa. 124, 139 (1873); Muir v. Madden, 286 Pa. 233, 133 A. 226 (1926); Buell v. Union Twp. School District, 395 Pa. 567, 150 A. 2d 852 (1959). Therefore, the Secretary was correct in his finding that § 211(c) of the Act, supra, excludes plaintiff's income from being considered as "income from self-employment".

 Plaintiff contends in his brief that the Secretary did not apply the proper legal standard in finding that plaintiff's benefits were subject to deductions for all months after January, 1966.

 Sections 203(b) and 203(f)(1)(E) of the Act, 42 U.S.C. § 403(b) and § 403(f)(1)(E), dictate benefit deductions for any month in which an individual's earnings from wages exceed $140, unless the individual did not in such month "render services for wages * * * of more than $140." *fn4" The Secretary found that plaintiff had performed no physical or advisory services as a tax collector from January, 1966 to May, 1966, but that his employer-employee relationship commenced in January, 1966, and, therefore, plaintiff has been "[rendering] services for wages" in all months since January, 1966. Plaintiff contends he has only "[rendered] services for wages" in July and August of the years in question.

 The term "services" is not defined by the Act, but its meaning was defined by the Supreme Court in Social Security Board v. Nierotko, 327 U.S. 358, 66 S. Ct. 637, 90 L. Ed. 718 (1945). In ruling that a back pay award for which no physical labor had been performed ...


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