United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2374
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David Petersen, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Michael J. Astrue, Commissioner of *
Social Security, *
*
Appellant. *
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Submitted: March 11, 2010
Filed: February 3, 2011
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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
The Commissioner of Social Security appeals the district court’s1 judgment
reversing the Commissioner’s decision to apply the Windfall Elimination Provision
to David Petersen’s old-age social security benefits. As we agree with the district
court’s well-reasoned decision, we affirm.
1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
I.
A.
As this case intimately involves the Windfall Elimination Provision (WEP), we
begin with a brief description of that provision. The WEP was enacted in 1983 to
eliminate the unintended benefits windfall that occurs when workers who split their
career between covered employment (required to pay Social Security taxes) and non-
covered employment (exempt from Social Security taxes). 42 U.S.C. § 415. This
non-covered employment is often federal employment that, prior to 1984, was exempt
from Social Security taxes because federal employees contributed to the federal civil
service pension which was “designed to take the place both of social security and a
private pension plan for workers who remain in [federal] employment throughout
their careers.” See H.R. Rep. No. 98-25, at 22 (1983), reprinted in 1983
U.S.C.C.A.N. 219, 240. Prior to the passage of the WEP, in calculating a
beneficiary’s primary insurance amount from the beneficiary’s average monthly
earnings, the Social Security Administration (SSA) did not consider whether the
earnings came from covered or non-covered employment. As a result, beneficiaries
that had a split career received both full Social Security benefits and whatever
pension benefits were provided by the non-covered employment. The WEP requires
a calculation of the Social Security benefit under a modified formula to account for
the civil service pension benefits.
The WEP is not without statutory exceptions, however. One of those
exceptions is at the heart of this case. The WEP’s modified formula is not used if the
claimant is receiving “a monthly periodic payment . . . based wholly on service as a
member of a uniformed service (as defined in [42 U.S.C. § 410(m)]).” 42 U.S.C.
§ 415(a)(7)(A). Under section 410(m), a “member of a uniformed service” includes,
among others, “any person appointed, enlisted, or inducted in a component of
the . . . Air Force . . . (including a reserve component as defined in [38 U.S.C.
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§ 101(27)]).” 42 U.S.C. § 410(m). The Air National Guard of the United States is
a reserve component of the Air Force. 38 U.S.C. § 101(27)(G).
B.
Between 1972 and 2000, Petersen worked for the Nebraska Air National Guard
as a National Guard technician. Under the National Guard Technicians Act of 1968,
employees such as Petersen were deemed “dual status” federal employees, a hybrid
civilian and military position. 10 U.S.C. § 10216(a). Although Petersen was paid by
the hour similar to normal civil servants, he was required to be a member of the
Nebraska Air National Guard, to participate in weekend and summer military training
and drills, to wear military uniform while on the job, and to maintain military physical
standards. In October 2000, Petersen retired from his National Guard technician’s
position and began drawing a civil pension based on his service. Part of the pension
was paid by the Office of Personnel Management (OPM), the civilian component of
the federal government. In April 2006, Petersen sought old-age retirement benefits
from the SSA. Although he received an award of benefits, the SSA reduced those
benefits under the WEP.
C.
On initial consideration and reconsideration, the SSA determined that
Petersen’s benefits were subject to WEP’s modified formula. At Petersen’s request,
this decision was reviewed by an Administrative Law Judge (ALJ). The ALJ
reversed the decision, holding that a prior decision from the United States District
Court for the Western District of Missouri held that National Guard technicians were
on full-time military duty when performing their jobs. The ALJ found, therefore, that
the pension Petersen received for his National Guard technician work was excepted
from the WEP. On its own motion, the Social Security Appeals Council initiated
review of the ALJ’s decision and reversed, holding that the exception to the WEP did
not apply to Petersen.
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Petersen sought review by the district court. The district court recognized that
the “sole issue raised by the parties is whether [Petersen’s] OPM pension is ‘a
payment based wholly on service as a member of a uniformed service.’” The district
court held that Petersen’s pension was payment based on “service as a member of a
uniformed service” and thus subject to the WEP exception.2
Undeterred, the SSA sought an order to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e), arguing that the district court’s decision that
Petersen was a member of a uniformed service was inconsistent with the fact that
military technicians had civilian status. In a thorough and well-reasoned decision, the
district court rejected this argument and held that the WEP exception lacks any
reference to the person’s “status” and only requires that the pension payments be
based “wholly on service” as a member of the uniformed services.
2
In its initial decision, the district court quoted the following from the ALJ’s
determination:
The evidence shows that, while working as a National Guard technician,
the Claimant was required to be a member of the Nebraska Air National
Guard; was required to wear a National Guard uniform appropriate for
his grade and component of the Armed Forces on a daily basis; was
subject to military supervision and discipline, including courts-martial;
was required to maintain military physical fitness qualifications; and
would lose his job if he failed to meet any of the above military
requirements.
(District Ct. Order 3, Feb. 23, 2009 (emphasis added).) We note, however, that
National Guard technicians such as Petersen would not have been subjected to the
Uniform Code of Military Justice unless he was “in Federal service.” See 10 U.S.C.
§ 802(a)(3); see also Walch v. Adjuntant General’s Dep’t of Tex., 533 F.3d 289, 296-
97 (5th Cir. 2008) (“As civilians, these technicians are not while in that status subject
to military discipline such as under the Uniform Code of Military Justice.”).
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In this appeal, the SSA raises the following arguments: (1) the SSA’s
interpretation of the statute is entitled to deference should the statute be deemed to
be ambiguous; (2) under the plain language of the statute, Petersen’s work as a
National Guard Technician was not “service as a member of a uniformed service;”
and (3) the legislative history supports the conclusion that Congress intended, in
enacting the uniformed services exception, to eliminate the differential treatment of
individuals on inactive duty training status between 1956 and 1988.
II.
A.
We have appellate jurisdiction to consider this appeal under 42 U.S.C. § 405(g)
and 28 U.S.C. § 1291. As we are charged with deciding a question of statutory
interpretation, our review of the district court’s order and the SSA decision is de
novo. See Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004).
We have indicated previously that “appropriate deference” should be given to
the SSA’s interpretation of the Social Security Act. See Smith v. Sullivan, 982 F.2d
308, 311 (8th Cir. 1992). Deference is appropriate where “Congress has, either
explicitly or implicitly, left a gap in a statute to be filled by a particular agency.”
TeamBank, N.A. v. McClure, 279 F.3d 614, 618 (2002) (citing Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984)). However, we find,
as explained below, that the meaning and intent of section 415(a)(7)(A) is clear and
unambiguous, therefore it is unnecessary for us to defer to the SSA’s interpretation
of the statute. See Chevron, 467 U.S. at 842-43 (“If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.”).
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B.
Under 32 U.S.C. § 709, the statute that codified the National Guard Technician
Act of 1968, National Guard technicians were given “dual status” roles, defined as
Federal civilian employee[s] who . . . [are] required as a condition of
that employment to maintain membership in the Selected Reserve; and
[are] assigned to a civilian position as a technician in the organizing,
administering, instructing, or training of the Selected Reserve or in the
maintenance and repair of supplies or equipment issued to the Selected
Reserve or the armed forces.
10 U.S.C. § 10216(a)(1)(B)-(C). To maintain employment, National Guard
technicians are required to maintain their membership in the National Guard, to
“[h]old the military grade specified by the Secretary concerned for that position,” and,
while performing the work of a National Guard technician, to “wear the uniform
appropriate for the member’s grade and component of the armed forces.” 32 U.S.C.
§ 709(b).
The SSA argues that, despite the various military requirements imposed upon
National Guard technicians, the fact that they are defined as “Federal civilian
employee[s]” necessarily means that their work was “by” a member of the uniformed
service and not “as” a member of the uniformed service. The SSA argues that, under
the plain language of the statute, “service as a member of a uniformed service” is
limited “to military duties performed while acting in one’s capacity as a member of
the National Guard.” Such duties would include, according to the SSA, required
military training such as weekend drills “and other kinds of military duty, whether on
active duty or some other military duty status.” Accordingly, under the SSA’s
argument, the fact that Petersen was in a “dual status” role, his work was civilian and
thus was performed “by” a member of a uniformed service and not “as” a member of
a uniformed service.
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We do not agree with the SSA’s approach that because Petersen was a “dual
status” employee, his work as a National Guard technician was not work performed
“as a member of the uniformed services.” “As with any question of statutory
interpretation, our analysis begins with the plain language of the statute.” Jimenez v.
Quarterman, 129 S. Ct. 681, 685 (2009). Under the WEP’s exception, if Petersen is
receiving a pension that is “based wholly on service as a member of a uniformed
service (as defined in [42 U.S.C. § 410(m)]),” 42 U.S.C. § 415(a)(7)(A), that person’s
social security benefit is not subject to WEP’s modified formula. Section
415(a)(7)(A) only requires that the service be as a member of the uniformed service.
Petersen’s pension meets the limited requirements of the statute. Neither party
disputes that the Nebraska Air National Guard is a “uniformed service” or that the
pension Petersen is receiving is based entirely on his service as a National Guard
technician. Nor is it disputed that when he was working as a National Guard
technician, Petersen was required to maintain his membership in the National Guard
and the military grade for his position, 32 U.S.C. § 709(f)(1)(A), and was required by
statute to “wear the uniform appropriate for [his] grade and component of the armed
forces” while on duty, 32 U.S.C. § 709(b)(4). Due to these unique National Guard
technician requirements imposed upon him, we agree with the district court that
Petersen performed his work “as a member of” the Nebraska Air National Guard.
As the district court noted, absent from the WEP exception is a requirement
that the “service” be only in a non-civilian or military duty capacity. Rather, the plain
language of the statute makes it abundantly clear that the exception applies to all
service performed as a member of a uniformed service. The SSA’s request that this
court read a “military duty” requirement into the statute is rejected. While this
outcome may result in Petersen and others receiving a windfall in retirement benefits,
the solution is in a change to the WEP, not in a distorted reading of the current
statute.
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We decline to address the SSA’s arguments regarding Congressional intent or
legislative history because there is no ambiguity in the WEP exception. See United
States v. McAllister, 225 F.3d 982, 986 (8th Cir. 2000) (“If the plain language of the
statute is unambiguous, that language is conclusive absent clear legislative intent to
the contrary. Therefore, if the intent of Congress can be clearly discerned from the
statute’s language, the judicial inquiry must end.” (quoting United States v. S.A., 129
F.3d 995, 998 (8th Cir. 1997))).
III.
Accordingly, we affirm the district court’s judgment reversing the decision of
the Commissioner of Social Security.
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