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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12408
________________________
D.C. Docket No. 5:15-cv-01677-VEH
DONALD LARRY MARTIN,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 7, 2018)
Before WILSON, JORDAN, and HIGGINBOTHAM, * Circuit Judges.
PER CURIAM:
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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This case requires us to consider the boundaries of “payment based wholly
on service as a member of a uniformed service” for the purposes of Social Security
benefit calculations. We agree with the Social Security Administration’s
interpretation, and affirm the district court’s decision.
I.
Donald Larry Martin appeals from the Social Security Administration
(SSA)’s decision to reduce his monthly retirement insurance benefits in accordance
with the Social Security Act’s “windfall elimination provision.” Martin and the
SSA disagree on whether he is eligible for an exception to the provision that would
prevent the reduction of his benefits.
A.
The Social Security Act does not distribute social security benefits as a flat
percentage of a recipient’s earnings. Instead, it adjusts benefits payouts so that
individuals with lower “average indexed monthly earnings” 1 are entitled to a
greater percentage of those earnings than those with higher earnings.2 This allows
1
“Average indexed monthly earnings” are calculated by taking into account a person’s
inflation-adjusted monthly earnings subject to Social Security taxes. See Social Security Benefit
Amounts, Soc. Sec. Admin., http://www.ssa.gov/oact/cola/Benefits.html (last visited Aug. 23,
2018).
2
42 U.S.C. § 415(a)(1) (2018).
2
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low-income workers to receive a higher return on their Social Security
contributions than higher-income workers. 3
Further, not all employment is subject to Social Security contributions. The
statutory scheme distinguishes between “covered” and “noncovered” employment.
Covered employment is subject to various Social Security taxes, and associated
retirement benefits are calculated to account for average indexed monthly earnings
in the manner we described.4 Noncovered employment is exempt from Social
Security taxes,5 but many noncovered positions include a separate annuity or
pension.
Taken together, these elements of the default Social Security plan mean that
a person who worked in both covered and noncovered employment might doubly
benefit. Such a person might receive a pension or annuity from a noncovered
employer while simultaneously receiving higher-than-warranted Social Security
benefits—since the percentage of average indexed monthly earnings to distribute
would be calculated only on the basis of any income from covered employment. 6
3
See H.R. Rep. No. 103-670, at 125 (1994) (Conf. Rep.) (“[T]he weighted Social
Security benefit formula . . . is intended to replace a higher proportion of wages for low-earning
workers than for high-earning workers.”).
4
See 20 C.F.R. § 404.1001 (2018).
5
See 42 U.S.C. § 410(a)(5); 20 C.F.R. § 404.1018.
6
See H.R. Rep. 98-25, pt. 1, at 22 (1983) (“If the noncovered worker in addition is
eligible for a heavily weighted social security benefit, through moonlighting or through a
relatively short career under social security, his total retirement pension income will most likely
greatly exceed that of a worker with similar earnings all under social security.”).
3
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The Act’s “windfall elimination provision” helps eliminate the potential for
double-dipping. It modifies the default formula to account for an individual who
receives a monthly payment “based in whole or in part upon his or her earnings”
for noncovered work. 7 Such an individual will receive a smaller percentage of
average indexed monthly earnings than he or she would receive under the standard
formula. 8
There are some exceptions to the windfall elimination provision, however.
Primarily relevant here is subsection 415(a)(7)(A)(III)’s exception for any
“payment based wholly on service as a member of a uniformed service,” which we
will refer to as the provision’s “uniformed services exception.” 9 “[M]ember of a
uniformed service” is not defined in the provision, but rather incorporates
definitions from across the U.S. Code. In doing so, it encompasses members of the
Army National Guard. 10
B.
7
42 U.S.C. § 415(a)(7)(A); see also 20 C.F.R. § 404.213(a)(3).
8
42 U.S.C. § 415(a)(7)(B). Social Security retirement benefits cannot be reduced by
more than half the monthly payment an individual receives based on his or her noncovered
employment. See id.
9
Id. § 415(a)(7)(A)(III).
10
Section 415(a)(7)(A)(III) cross-references 42 U.S.C. § 410(m), which defines “member
of a uniformed service” to include “any person appointed, enlisted, or inducted in a component
of the Army . . . including a reserve component,” and cross-references the reserve component
definition in 38 U.S.C. § 101(27). In turn, that provision defines “reserve component” to include
the Army National Guard of the United States. 38 U.S.C. § 101(27)(F) (2018).
4
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At issue is how this statutory scheme applies to someone who served as a
National Guard “military technician (dual status),” also known as a “dual status
technician.” Congress has provided for two types of technicians to provide support
to National Guard units: dual status technicians and non-dual status technicians.11
The two roles have similar job responsibilities,12 both are supervised by military
adjutants general, 13 and neither is subject to military discipline under the Uniform
Code of Military Justice. 14 There are several relevant differences, however: only
dual status technicians are required as a condition of employment to maintain
membership in the Selected Reserve15 and a specified military grade, 16 and to dress
in uniform while performing technician duties.17 Moreover, unlike non-dual status
technicians, dual status technicians are “authorized and accounted for as a separate
18
category of civilian employees” and are exempt from the competitive service19
and requirements for reductions in Department of Defense civilian personnel.20
11
See 10 U.S.C. § 10216–17 (2018).
12
32 U.S.C. § 709(a).
13
See id. § 709(d).
14
See Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 296–97 (5th Cir. 2008).
15
10 U.S.C. § 10216(a)(1)(B). Unlike dual-status technicians, non-dual status technicians
do not need to maintain membership in the Selected Reserve to continue their employment. Id. §
10217(a).
16
32 U.S.C. § 709(b)(3).
17
Id. § 709(b)(4).
18
Compare 10 U.S.C. § 10216(a)(2), with 10 U.S.C. § 10217(a).
19
See 32 U.S.C. § 709(e).
20
10 U.S.C. § 10216(b)(3).
5
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Despite these differences, a dual status technician is “assigned to a civilian position
as a technician,”21 and consistently referred to as a civilian employee. 22
C.
Martin was a National Guard dual status technician from 1982 to 2005, and
a member of the Alabama Army National Guard during the same time period.23 In
his administrative hearing in this case, he stated that “[o]n [the] weekend [he] was
treated just like a soldier in the Alabama National Guard” and assigned to a
military position. He further explained that he received “military pay” for his
weekend drills with the National Guard and “federal civil service pay” for his
weekday employment as a dual status technician. Neither his National Guard
membership nor his employment as a dual status technician were covered
employment for Social Security purposes.
In 2003, after Martin’s National Guard unit was selected to go on a tour to
Norfolk, Virginia, a doctor referred Martin to a medical board due to a prior
asthma diagnosis. The medical board concluded that Martin was non-deployable,
so Martin was transferred to a non-deployable unit and subsequently discharged on
December 4, 2004. 24 Because he was no longer a member of the National Guard,
21
Id. § 10216(a)(1)(C).
22
Id. § 10216(a)(1), (a)(2).
23
Martin’s National Guard service began several years earlier, in 1977.
24
There is some confusion in the record as to whether Martin was honorably discharged
or transferred into the retired reserve, but the specifics do not affect this case.
6
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the civil service also terminated him from his job as a dual status technician,
effective April 9, 2005.
Martin was eligible for three different payments as a consequence of these
events. First, he began receiving disability retirement payments from the federal
civil service in 2005.25 Second, he was eligible for military retired pay due to his
National Guard service and prior active and inactive military duty in the 1970s,
and began receiving those payments once he turned sixty in 2010. Finally, Martin
was granted Social Security retirement insurance benefits in 2012 based on
covered employment he had performed before the age of thirty-two.
Martin’s Social Security retirement insurance benefits are at the heart of this
case. The SSA determined that because Martin was also receiving civil service
disability retirement payments, his Social Security benefits should be reduced
under the windfall elimination provision. It correspondingly reduced his Social
Security retirement insurance benefits from $658.90 per month to $439.20 per
month. This reduction solely reflected Martin’s receipt of the civil service
payments; it did not take into account his military retired pay, as that was
indisputably based on his performance of military duties.
Martin sought recourse against this determination from the SSA—requesting
reconsideration from the SSA, a determination by an administrative law judge
25
There also appears to be some confusion in the record as to whether these payments are
connected to a pension or an annuity, but the answer similarly does not affect our opinion.
7
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(ALJ), and review by the SSA Appeals Council 26—and was denied at each step.
Once he received the agency’s final determination, he sought review from the
district court, which agreed with the agency27 and denied Martin’s subsequent
motion to amend its judgment. He timely appealed to this Court.
Martin’s position is that any payments he now receives based on his
employment as a dual status technician are “payment[s] based wholly on service as
a member of a uniformed service,” and are therefore subject to the uniformed
services exception to the windfall elimination provision. As such, he claims that
the disability retirement payments should not be taken into account to reduce his
Social Security payments. In turn, the SSA claims that the uniformed services
exception should not be construed to extend to dual status technician employment.
II.
We review findings of fact by the Commissioner of Social Security for
substantial evidence, 28 and review the Commissioner’s legal decisions de novo.29
We will therefore review the construction of the uniformed services exception de
26
The Appeals Council denied Martin’s request for review.
27
See Martin v. Berryhill, No. 5:15-CV-01677-VEH, 2017 WL 818849 (N.D. Ala. Mar.
2, 2017).
28
See 42 U.S.C. § 405(g) (2018).
29
See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).
8
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novo, albeit potentially subject to the principles of deference we apply to an
agency’s statutory interpretation. 30
A.
At a minimum, we give an agency interpretation deference under Skidmore
v. Swift & Co. corresponding to the “thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if lacking power to control.”31
This recognizes an agency’s specialized experience and information-seeking
capacities, as well as the value of uniformity. 32
If an agency’s interpretation meets a certain threshold, we instead give
heightened deference according to the two-step framework laid out in Chevron,
U.S.A., Inc. v. National Resources Defense Council, Inc. 33 Under that framework,
we must defer to an agency’s reasonable interpretation of an ambiguous statute. 34
B.
Since Chevron, the Supreme Court has clarified what some refer to as “step
zero” of Chevron 35: the threshold requirement that an agency interpretation be of
30
See Arevalo v. U.S. Att’y Gen., 872 F.3d 1184, 1187 (11th Cir. 2017); Stroup v.
Barnhart, 327 F.3d 1258, 1260 (11th Cir. 2003).
31
323 U.S. 134, 140 (1944); see Buckner v. Fla. Habilitation Network, Inc., 489 F.3d
1151, 1155 (11th Cir. 2007).
32
See United States v. Mead Corp., 533 U.S. 218, 234–35 (2001) (discussing Skidmore).
33
467 U.S. 837 (1984).
34
Id. at 842–43.
35
See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187 (2006).
9
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the sort that warrants Chevron analysis in the first instance. Specifically, in United
States v. Mead Corp., the Court concluded that the principles underlying Chevron
are only applicable where Congress explicitly or implicitly “expect[s] the agency
to be able to speak with the force of law when it addresses ambiguity in the statute
or fills a space in the enacted law,” and the agency actually acts in line with that
expectation.36 This will frequently be apparent when the agency acts pursuant to its
authority to engage in notice-and-comment rulemaking or formal adjudication on
the topic, but those formal procedures are not universally necessary. 37 Importantly,
even when an agency interpretation is not eligible for Chevron deference because it
does not overcome step zero, it may still be entitled to Skidmore deference.38
The SSA’s interpretation of the uniformed services exception appears in
three different agency issuances. Most importantly, the agency issued an
“acquiescence ruling” in response to Petersen v. Astrue,39 an Eighth Circuit case
holding that the uniformed services exception applies to dual status technicians.
36
Mead, 533 U.S. at 229; see Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016).
37
Mead, 533 U.S. at 230 (“[T]he want of [notice-and-comment] procedure here does not
decide the case, for we have sometimes found reasons for Chevron deference even when no such
administrative formality was required and none was afforded . . . .”); see also Barnhart v.
Walton, 535 U.S. 212, 222 (2002) (“In this case, the interstitial nature of the legal question, the
related expertise of the Agency, the importance of the question to administration of the statute,
the complexity of that administration, and the careful consideration the Agency has given the
question over a long period of time all indicate that Chevron provides the appropriate legal lens
through which to view the legality of the Agency interpretation here at issue.”).
38
Mead, 533 U.S. at 234–35 (“Chevron did nothing to eliminate Skidmore’s holding that
an agency’s interpretation may merit some deference whatever its form . . . .”).
39
633 F.3d 633 (8th Cir. 2011).
10
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This ruling—which was published in the “Notices” section of the Federal
Register—lacks “the force and effect of the law or regulations,” but binds internal
components of the SSA. 40 It concluded that the SSA would only apply Petersen’s
interpretation within the Eighth Circuit, and would continue to treat dual status
technicians as ineligible for the exception everywhere else. 41 The agency’s
interpretation also appears in its “Program Operations Manual System” (POMS),
which lays out internal procedures for the SSA. 42 Finally, it loosely appears within
the SSA’s discussion of its implementing regulation for the uniformed services
exception.43
The parties seemingly agree that the SSA’s interpretation, couched in these
issuances, clears the “step zero” hurdle such that we should apply Chevron’s
ordinary two-step process. Martin makes no argument that the SSA’s interpretation
does not speak sufficiently with the force of law to qualify for Chevron deference,
40
See Acquiescence Ruling Definition, Soc. Sec. Admin.,
http://www.ssa.gov/regulations/def-ar.htm (last visited Aug. 23, 2018).
41
See SSAR 12-1(8), 77 Fed. Reg. 51842 (Aug. 27, 2012), as corrected by 77 Fed. Reg.
54646 (Sept. 5, 2012) [hereinafter Acquiescence Ruling 12-1(8)].
42
See Soc. Sec. Admin., Program Operations Manual System RS 00605.380: National
Guard Civilian Pensions for Dual Status Technicians: Petersen Court Case,
http://secure.ssa.gov/apps10/poms.nsf/lnx/0300605380 (last visited Aug. 23, 2018) [hereinafter
Program Operations Manual System RS 00605.380] (explaining how to apply the windfall
elimination provision to beneficiaries within and outside the Eighth Circuit).
43
See 60 Fed. Reg. 56511, 56512 (Nov. 9, 1995) (stating that a pension based on inactive
duty training after 1956 and before 1988 “has been the only kind of pension based on military
service which caused a . . . modified computation under the windfall elimination provision”).
11
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and indeed appears to assume that the Chevron framework applies. 44 For its part,
the SSA argues that any objections under Chevron step zero are waivable, and that
Martin has waived them by failing to contest the applicability of Chevron. The
district court analyzed the step zero issue and held that the SSA’s interpretation
was eligible for Chevron deference,45 but acknowledged that it reached that
conclusion in part because Martin had failed to contest the issue. 46
This raises two unsettled issues. The first is whether “step zero” of Chevron
is waivable—that is, whether the parties may agree that the court must grant
Chevron deference if a statute is ambiguous and the agency’s construction is
reasonable, even if the agency interpretation would not ordinarily be eligible for
Chevron deference under Mead and its progeny. 47 Other circuits have split on this
issue, with some concluding that an objection to the Chevron framework is a non-
44
Martin does briefly discuss Barnhart’s mandate that courts should consider a number
of factors to establish whether “Chevron provides the appropriate legal lens through which to
view the legality of the Agency interpretation.” See 535 U.S. at 222. He does not discuss any of
these factors in relation to the SSA’s interpretation, however, and instead argues that Chevron
deference is not warranted because the text of the uniformed services exception unambiguously
supports his position.
45
See Martin, 2017 WL 818849, at *9–11 (concluding that “Acquiescence Ruling 12-
1(8), though not promulgated through notice-and-comment-rulemaking and without the full force
and effect of law, is an authoritative, interpretive, and permissive construction of the Social
Security Act that is entitled to deference”).
46
Id. at *10 n.7 (“Mr. Martin has made no argument that Skidmore is the more
appropriate standard of deference. Accordingly, the Court has reviewed the Commissioner’s
interpretation within the Chevron rules of engagement.”).
47
In Stroup v. Barnhart, we considered a similar issue concerning a formally
promulgated SSA regulation interpreting the windfall elimination provision. There, we
proceeded with the relevant analysis under the Supreme Court’s decisions in Mead and Barnhart
v. Walton, despite noting that we reached our conclusion that the Chevron framework applied
“[e]specially in the absence of any argument to the contrary.” 327 F.3d 1258, 1261 (11th Cir.
2003). We did not address the issue of waiver outright.
12
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jurisdictional argument that parties may waive,48 and others analogizing Chevron
deference to a standard of review that the court must independently assess.49
The second is whether, if we concluded that step zero is not waivable, the
SSA’s interpretation would meet Mead’s threshold requirement. The district court
emphasized a number of aspects of the SSA’s acquiescence ruling that appear to
warrant deference, such as the intricacy of the statutory scheme the SSA must
administer and the consistency of the SSA’s interpretation.50 But there are also
several factors that counsel against granting the acquiescence ruling Chevron
deference, like that the SSA disavows that its acquiescence rulings have the force
of law, its relatively cursory rationale, and the lack of notice-and-comment
procedure. 51 Further, while it is unclear whether the acquiescence ruling would
48
See, e.g., Lubow v. Dep’t of State, 783 F.3d 877, 884 (D.C. Cir. 2015) (“Because the
plaintiffs affirm the applicability of the Chevron framework, we need not consider potential
arguments they might have made (but did not make) against our deferring to the agency under
Chevron . . . . The applicability of the Chevron framework does not go to our court’s jurisdiction,
and a party can therefore forfeit an argument against deference by failing to raise it.”); Humane
Soc’y of the U.S. v. Locke, 626 F.3d 1040, 1054 n.8 (9th Cir. 2010) (observing in a footnote that
because all parties agreed that Chevron deference applied, the court would assume the same
without deciding the issue). Other circuits had recognized the possibility for waiver of similar
issues before the Supreme Court clarified the “step zero” requirement in the early 2000s. See
Kikalos v. C.I.R., 190 F.3d 791, 796 (7th Cir. 1999); Am. Auto. Mfrs. Ass’n v. Comm’r, Mass.
Dep’t of Envtl. Prot., 31 F.3d 18, 25–26 (1st Cir. 1994).
49
Sierra Club v. U.S. Dep’t of the Interior, Nos. 18-1082 & 18-1083, 2018 WL 3717067,
at *17 (4th Cir. Aug. 6, 2018) (“We . . . must independently assure ourselves that any statutory
interpretation provided by [the agency] qualifies for Chevron review and if not, whether it is
entitled to a lesser form of deference, such as that afforded under Skidmore.”); Mushtaq v.
Holder, 583 F.3d 875, 876 (5th Cir. 2009) (rejecting Chevron deference even though both parties
agreed it was appropriate, because “[a] reviewing court . . . may reject even an agreed standard”).
50
See Martin, 2017 WL 818849, at *9–11.
51
While we have accorded Chevron deference to a published SSA regulation interpreting
the Windfall Elimination Provision, see Stroup, 327 F.3d at 1261, we have not addressed what
13
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qualify for Chevron deference under a step zero analysis, the POMS entry and
regulation preamble are more plainly not Chevron-eligible.52
We do not need to unravel whether the parties can agree to bypass Chevron
step zero or whether, if they cannot, the SSA’s interpretation would survive that
analysis. Instead, we conclude that even under Skidmore deference, the SSA has
the best reading of the uniformed services exception.
III.
The crux of Martin’s position is that work as a dual status technician is
“essentially military” in nature, and therefore his employment as a dual status
technician was rendered “wholly . . . as a member of a uniformed service.” After
deference to accord acquiescence rulings in particular. Illustratively, the Third Circuit recently
held that a specific SSA acquiescence ruling was not entitled to Chevron deference because it did
not undergo notice-and-comment procedures, lacked the force of law, and was relatively cursory,
though the court declined to conclude that no acquiescence ruling could ever warrant Chevron
deference. Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 302–03 & n.19 (3d Cir. 2012).
The district court looked to a number of cases concluding that social security rulings
should be entitled to Chevron deference even though they lack the force of law. See Martin, 2017
WL 818849, at *10 (citing Garcia v. Sec’y of Health & Human Servs., 46 F.3d 552, 557 (6th Cir.
1995), and Fair v. Shalala, 37 F.3d 1466, 1469 (11th Cir. 1994)). While we agree that these
cases bear on the question, we must also consider the Supreme Court’s intervening dictates in
Mead and Barnhart. In light of subsequent “step zero” caselaw, we do not think the cited cases
decisively establish that the acquiescence ruling in this case is Chevron-eligible.
52
Even though we gave Chevron deference to a published regulation construing the
windfall elimination provision in Stroup v. Barnhart, we simultaneously implied that the SSA
POMS, while persuasive, is not subject to the same deference, see Stroup, 327 F.3d at 1262, and
the Supreme Court has implied the same, see Wash. State Dep’t of Soc. & Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371, 385–86 (2003). As for the regulation preamble, it
does not plainly exclude dual status technicians; at best, it provides support for the interpretation
the SSA has established in the other documents.
14
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parsing the provision’s text, giving the SSA’s interpretation the deference it is due
under Skidmore, we cannot agree.
A.
As we have observed, the SSA’s interpretation is at least entitled to
deference based on its power to persuade, accounting for the “thoroughness
evident in its consideration, the validity of its reasoning, [and] its consistency with
earlier and later pronouncements.”53 This recognizes that informal agency
interpretations “constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance.” 54
Here, the SSA administers a “highly detailed” statutory scheme and “can
bring the benefit of specialized experience to bear on the subtle questions in this
case.”55 It previously considered the issue presented by Martin and resolved to
preserve its longstanding interpretation of the provision based on its reading of the
legislative history. 56 Further, the SSA POMS provides specific, detailed
instructions on how to apply the SSA’s interpretation, especially in light of the
53
Skidmore, 323 U.S. at 140.
54
Id.
55
Cf. Mead, 533 U.S. at 234–35 (holding that Customs ruling letters were entitled to
Skidmore deference for these reasons); see also Barnhart v. Thomas, 540 U.S. 20, 28–29 (2003)
(referring to the Social Security hearing system as “probably the largest adjudicative agency in
the western world”); Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981) (observing that the
Social Security Act is “among the most intricate ever drafted by Congress”).
56
See Acquiescence Ruling 12-1(8), supra.
15
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Petersen decision that governs claims by residents of the Eighth Circuit.57 Taken
together, these considerations reflect a carefully reasoned agency interpretation
that meshes with the SSA’s overall administration of the Social Security Act—
exactly the type of interpretation that warrants a reasonable degree of deference
under Skidmore. While this deference may not override our reading of the
provision’s plain meaning, 58 it will inform our interpretation of any text that is
more difficult to untangle.
B.
We begin with the text of the uniformed services exception.59 We must first
determine whether the uniformed services exception’s language “has a plain and
unambiguous meaning.”60 If the meaning of the exception is “inescapably
ambiguous,” we may look outside the statutory text to aid in our interpretation.61
In relevant context, the provision reads as follows:
(7)(A) In the case of an individual whose primary
insurance amount would be computed under paragraph
(1) of this subsection, who—
(i) attains age 62 after 1985 (except where he or
she became entitled to a disability insurance
benefit before 1986 and remained so entitled in
any of the 12 months immediately preceding his or
her attainment of age 62), or
57
See Program Operations Manual System RS 00605.380, supra.
58
See Riegel v. Medtronic, Inc., 552 U.S. 312, 326 (2008).
59
See Durr v. Shinseki, 638 F.3d 1342, 1344 (11th Cir. 2011).
60
United States v. Williams, 790 F.3d 1240, 1245 (11th Cir. 2015).
61
See id. (observing that this includes the use of legislative history when necessary).
16
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(ii) would attain age 62 after 1985 and becomes
eligible for a disability insurance benefit after
1985,
and who first becomes eligible after 1985 for a
monthly periodic payment ( . . . but excluding
. . . (III) a payment based wholly on service as a
member of a uniformed service (as defined in
section 410(m) of this title)) which is based in
whole or in part upon his or her earnings for
service which did not constitute . . . [covered
employment], the primary insurance amount of
that individual during his or her concurrent
entitlement to such monthly period payment and to
old-age or disability insurance benefits shall be
computed or recomputed under subparagraph
(B). 62
We agree with Martin, and the SSA does not contest, that “wholly” has a
plain meaning in this context—it means “to the full or entire extent” or “to the
exclusion of other things.”63
The word “service,” in the first sense in which it is used in the provision,
does not have a definite meaning in context. It could be taken to relate to
employment generally, or it could be read to be specific to military membership.64
62
42 U.S.C. § 415(a)(7)(A)(III) (emphasis added).
63
Webster’s Third New International Dictionary 2612 (1961). Dictionary definitions are
of course “not the end of plain meaning analysis,” People for Ethical Treatment of Animals, Inc.
v. Miami Seaquarium, 879 F.3d 1142, 1146 (11th Cir. 2018) (per curiam), and a battle of the
dictionaries runs the risk of obfuscating a statute’s plain meaning. But especially here, where a
definition is not in serious dispute, a definition is helpful in sharpening our interpretation.
64
See, e.g., Webster’s Third New International Dictionary, supra, at 2075 (offering two
pertinent definitions of “service,” one as “the performance of work commanded or paid for by
another,” and the other as “the performance of military duty, esp. in war”).
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Resolving this will not decisively clarify the provision’s scope, however. If we
read “service” in its broader sense to constitute employment, it will still be limited
by the requirement that it be performed “as a member of a uniformed service,” as
we will explain. If we read it in its narrower scope to constitute solely military
service, we must still determine what activities fall within the sweep of military
service.
This brings us to the use of the word “as” to limit what service qualifies for
the uniformed services exception. In the context of the requirement, “as” appears
to limit the uniformed services exception only to payments for work performed in
one’s capacity or role as a member of the uniformed services. 65 As the SSA points
out, if Congress had intended the uniformed services exception to cover any
payments made to someone who had been a member of a uniformed service, it
could have accomplished that objective much more simply by excepting payments
“to” a member of a uniformed service or payments for service “by” a member of a
uniformed service. 66 To put a finer point on the issue, it is not enough that Martin
was a member of a uniformed service at the same time he performed the
65
In context, we take “as” to mean something to the effect of “in the character, role,
function, capacity, condition, or sense of.” Id. at 125.
66
Cf. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 888 F.3d 1163, 1176 (11th Cir. 2018)
(“If Congress had intended for [the statute at issue] to cover a state’s revenue expenditures, it
easily could have written it to say so. It didn’t.”); In re Appling, 848 F.3d 953, 958 (11th Cir.
2017) (“If the statute applied only to statements that expressed a debtor’s overall financial
condition, Congress could have said so . . . . But Congress did not use this language . . . . [or
other] phrases that would connote a full or complete expression of financial condition.”).
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noncovered employment at issue. Rather, the work for which Martin now receives
civil service disability retirement payments—his employment as a dual status
technician—must have been performed in his role as a member of a uniformed
service. 67 On this point, too, there is no serious dispute between the parties.68
The controversy is ultimately over what it means to perform service wholly
in one’s capacity or role as a member of a uniformed service. The text of the
uniformed services exception is of limited use here; while it cross-references and
incorporates definitions across the U.S. Code, at bottom it only clarifies that
members of the United States Army National Guard are “member[s] of a
uniformed service.” 69 It does not further define service performed as a member of
the National Guard, and therefore does not resolve whether the civil service
payments at issue were wholly for work Martin performed as a member of the
67
Martin, citing Social Security Board v. Nierotko, 327 U.S. 358, 365 (1946), argues that
“service” encompasses the entirety of the employer-employee relationship and not just the
aspects of individual work done for the employer. That does not, however, resolve our question
as to the nature of the compensated employment relationship at issue. Just because Martin was a
member of the National Guard and also worked for the National Guard in his dual status
technician capacity does not mean that both roles were performed in his capacity as a member of
the Guard.
68
Martin briefly appears to suggest that he is entitled to the uniformed services exception
simply because he was a member of a uniformed service at the time he carried out his dual status
technician responsibilities. In general, though, he argues from the premise that the dual status
technician role was part and parcel with his National Guard service, and he does not dispute the
SSA’s characterization of the provision as only applying to payments for work performed in
someone’s capacity as a member of a uniformed service.
69
As we have noted, 42 U.S.C. § 410(m) defines “member of a uniformed service” to
include members of reserve components as defined in 38 U.S.C. § 101(27), which includes the
Army National Guard of the United States. See 38 U.S.C. § 101(27)(F). This is not at issue in the
case; the question is rather whether service as a National Guard dual status technician occurs as a
member of the National Guard for the purposes of the uniformed services exception.
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National Guard, or whether they were at least partially for work he performed
outside of that role.
C.
But we are not limited to the twenty-one words of the uniformed services
exception. We must also look to Congress’s conception of the dual status
technician role, as evidenced by the rest of the statutory scheme. 70 Martin notes the
many elements of the dual status technician role that appear to place it within the
bounds of service as a member of the National Guard. Specifically, he observes
that he was required to maintain membership in the Alabama National Guard to
preserve his position as a dual status technician; that dual status technicians are
“authorized and accounted for as a separate category of civilian employees”; 71 that
dual status technicians “shall only be reduced as part of military force structure
reductions,” in contrast to reductions in Department of Defense civilian
personnel;72 that Martin’s job was administered by a military adjutant general;73
and that military technicians may be employed in “the administering . . . or training
of the National Guard.” 74 These aspects led the district court and the administrative
70
See King v. Burwell, 135 S. Ct. 2480, 2489 (2015); see also Durr, 638 F.3d at 1349
(“We do not look at one word or term in isolation, but instead we look to the entire statutory
context.” (alteration omitted)).
71
10 U.S.C. § 10216(a)(2).
72
Id. § 10216(b)(3).
73
32 U.S.C. § 709(d).
74
Id. § 709(a).
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law judge to concede that the dual status technician role is “essentially military” in
nature.75
Martin’s work as a dual status technician was distinct from his National
Guard service in important ways, though. Congress consistently refers to dual
status technician employment as a civilian position.76 Martin acknowledges that he
performed his technician work during the work week for federal civil service pay,
and took up his military position on the weekends for military pay. Now that
Martin no longer serves in the National Guard or as a dual status technician, he
receives separate military retired pay—including for his twenty-seven years of
National Guard service—and civil service disability payments. 77 Even the use of
the title “dual status” suggests that dual status technicians are employed not just in
their capacity as members of the National Guard.
The critical issue is therefore how the word “wholly” interacts with the
nature of the dual status technician position. By its plain meaning, “wholly” limits
the payments covered by the uniformed services exception: even if dual status
75
This tracks caselaw on other issues concerning National Guard technicians. See, e.g.,
Walch, 533 F.3d at 297 (“Technicians have a dual status. It is not possible to disentangle for
these purposes their military role and command structure from their civilian employment, such
that suits under [42 U.S.C. §§ 1983 and 1985] or Bivens may proceed without raising the same
concerns as when those claims are brought by traditional Guardsmen.”). Importantly, as the
district court observed, just because technician employment may be inseparable from military
employment for certain purposes does not mean that it is wholly indistinguishable from military
employment here.
76
See 10 U.S.C. § 10216(a)(1)(C), (a)(2).
77
As Martin explained at his hearing, “This [military retirement pay] included all my
service, starting with my active duty, which included Vietnam 1970-’71, my inactive service
from ’71 to ’76, and then my 27 years of National Guard service.”
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technician employment is essentially military, it is not subject to the uniformed
services exception if it is not wholly military in nature. Accounting for all of the
features of the dual status technician role, we find it difficult to conclude that a
dual status technician wholly performs that role as a member of the National
Guard.
D.
Recognizing that the plain text of the provision itself is not necessarily
determinative of what it means to perform service “as a member of a uniformed
service,” nothing Martin has presented extrinsic to the statutory scheme convinces
us of his position. Martin urges us to consider several additional sources, but none
of them indicate that the uniformed services exception covers payments for work
performed as a dual status technician.
He emphasizes the contrasts between dual status technicians and other
National Guard technicians, but this comparison does not sustain a conclusion that
dual status technicians wholly perform their service as members of the National
Guard. It is true that the role of “military technician (dual status)” is defined in a
section of the U.S. Code separate from the section defining the role of “non-dual
status technician,” and that non-dual status technicians need not maintain
membership in the National Guard or wear military uniform. 78 For all other
78
Compare 10 U.S.C. § 10216, with 10 U.S.C. § 10217.
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purposes, however, non-dual status technicians appear able to perform the same
79
responsibilities as dual status technicians, and they are “employ[ed] and
administer[ed]” by the same adjutants general. 80
Nor are other portions of the U.S. Code helpful in establishing the meaning
of the uniformed services exception. Martin isolates the use of the phrase “based
wholly on service as a member of a uniformed service” in 42 U.S.C.
§ 402(k)(5)(B)(i), which provides a similar exception to a provision reducing old
age and survivor’s insurance benefits, but that context does not bring information
on its interpretation. 81 Martin also notes that “[f]ull-time National Guard duty”
encompasses “training or other duty[ ] performed . . . in the member’s status as a
member of the National Guard,”82 and that “training or duty” extends to “[s]upport
of operations or missions undertaken by the member’s unit at the request of the
President or Secretary of Defense.”83 In context, this definition of “training or
duty” only suggests that National Guard members may permissibly be called upon
to perform tasks other than “assembl[ing] for drill and instruction . . . at least 48
79
See 32 U.S.C. § 709(a) (laying out the relevant responsibilities for both roles, subject to
the additional National Guard membership, military grade, and uniform requirements placed on
dual status technicians).
80
See id. § 709(d).
81
Martin also cites the use of the phrase in 42 U.S.C. § 410(d)(2)(B), but that subsection
does not exist, and the phrase does not appear anywhere in the surrounding subsections.
82
32 U.S.C. § 101(19).
83
Id. § 502(f)(1)(2)(A).
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times each year” and “participat[ing] in training . . . at least 15 days each year.”84
And, while “[s]upport of operations or missions undertaken by the technician’s
unit at the request of the President or the Secretary of Defense” is one of the
“additional duties” that a National Guard technician may be called upon to
perform, 85 it is not one of the technician’s core duties—instead, employing a
technician for operation or mission support is only permissible “to the extent that
. . . [it] does not interfere with the performance” of those core duties.86 This does
not establish that work performed as a dual status technician constitutes work
performed as a member of the National Guard.
Finally, Martin urges that the legislative history of the uniformed services
exception brings evidence that Congress intended the exception to encompass
employment like the dual status technician role at issue here. It does not. Rather,
the legislative history only reflects an effort by Congress to harmonize the
treatment of military pensions for active and inactive military service.87 It does not
84
Section 502(f)(1) specifically provides that “a member of the National Guard may[ ]
. . . without his consent, but with the pay and allowances provided by law[,] or . . . with his
consent, either with or without pay and allowances[,] be ordered to perform training or other
duty in addition to that prescribed under subsection (a).” Subsection (a) lays out the National
Guard’s yearly drill and training requirements, as we have described. See id. § 502(a).
85
Id. § 709(a)(3)(A).
86
See id. § 709(a) (“[P]ersons may be employed as technicians in—(1) the organizing,
administering, or training of the National Guard; (2) the maintenance and repair of supplies
issued to the National Guard or the armed forces; and (3) the performance of the following
additional duties to the extent that the performance of those duties does not interfere with the
performance of the duties described by paragraphs (1) and (2) . . . .” (emphasis added)).
87
See H.R. Rep. No. 103-670, at 125 (“Active military service became covered under
Social Security in 1957. Inactive duty by reservists (such as weekend drills) became covered
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show that Congress intended to exclude dual status technicians from the windfall
elimination provision. The legislative history of the National Guard Technicians
Act of 1968 also offers no special guidance; on one hand, Congress evidently
recognized that the vast majority of technicians would be dual status and that the
program would be “organized and operated along military lines,” 88 but on the other
hand, it consistently emphasized that part of even a dual status technician’s work
would be civilian employment. 89
***
After using the interpretive tools at our disposal, we conclude—accounting
for the unique nature of the dual status technician position and the deference we
have determined we owe the SSA’s interpretation under Skidmore—that Martin
did not perform his dual status technician employment wholly as a member of a
under Social Security in 1988. A pension based on either type of service (active or inactive), if
performed before 1957, does not trigger the WEP. The only military pension which triggers the
WEP is a pension based on inactive duty after 1956 and before 1988 . . . . [Under this bill, an]
individual’s receipt of a pension based wholly on service performed as a member of a uniformed
service, whether on active or inactive duty and whether performed prior to 1988 or not, would
not trigger application of the . . . WEP to the individual’s Social Security benefits.”); see also
H.R. Rep. No. 103-506, at 67 (1994) (explaining the same rationale and concluding that the prior
system “produce[d] arbitrary and inequitable results for a small, closed group of people who
receive military pensions based, at least in part, on noncovered military reserve duty after 1956
and before 1988”).
88
H.R. Rep. No. 90-1823, at 13 (1968).
89
See, e.g., id. at 2 (“The concept of the technician program is that the technicians will
serve concurrently in three different ways: (a) Perform full-time civilian work in their units; (b)
perform military training and duty in their units; and (c) be available to enter active Federal
service at any time their units are called.”).
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uniformed service. As a result, payments based on that employment do not qualify
for the exception.
IV.
We recognize in reaching this result that we are at odds with the Eighth
Circuit, which held in Petersen v. Astrue that the exception unambiguously applied
to a dual status technician.90 In doing so, the Eighth Circuit emphasized that dual
status technicians are required to maintain National Guard membership and to wear
uniforms while on duty, noting that these were “unique National Guard technician
requirements” that a dual status technician performed in his work as a member of
the National Guard.91 It further rejected the SSA’s proposal to read what the court
referred to as a “military duty” requirement into the statute, noting that all the
exception requires is that the service be conducted as a member of a uniformed
service. 92
For the reasons we have explained, we do not think the requirements of the
dual status technician position are sufficient to place dual status technicians within
the sweep of the exception—especially given the provision’s use of the word
“wholly.” We agree with the Eighth Circuit that not all service performed “as a
member of a uniformed service” must have characteristics of military duty. We
90
See Petersen, 633 F.3d at 637.
91
Id.
92
See id. (“[A]bsent from the WEP exception is a requirement that the ‘service’ be only
in a non-civilian or military duty capacity.”).
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further agree that certain aspects of a dual status technician’s employment may
ultimately be performed as a member of a uniformed service. 93 Given the dual
nature of the role and the civilian elements we have discussed, however, we cannot
agree that the employment is performed wholly as a member of a uniformed
service. We must instead hold that the uniformed services exception does not apply
in Martin’s case.
V.
We affirm the judgment of the district court.
93
For example, the portion of dual status technician employment that requires “[s]upport
of operations or missions undertaken by the member’s unit at the request of the President or
Secretary of Defense” arguably overlaps with the technician’s National Guard duties, as we have
discussed. See 32 U.S.C. §§ 502(f)(1)(2)(A), 709(a)(3)(A).
27