PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1961
____________
FLOYD DOUGLAS NEWTON,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-18-cv-00751)
District Judge: Honorable Renee M. Bumb
Submitted under Third Circuit LAR 34.1(a)
On December 10, 2019
Before: RESTREPO, ROTH and FISHER, Circuit Judges
(Opinion filed: December 22, 2020)
Roger D. Moore
Rehm, Bennett, Moore, Rehm & Ockander
9202 West Dodge Road
Suite 203
Omaha, NE 68116
Counsel for Appellant
Eda Giusti
Social Security Administration
Office of General Counsel SSA/OGC/Region III
300 Spring Garden Street
6th Floor
P.O. Box 41777
Philadelphia, PA 19123
Alisa B. Klein
Sushma Soni
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Appellee
O P I N I ON
ROTH, Circuit Judge:
2
I.
This case requires us to determine whether a National
Guard dual status technician’s pension is “based wholly on
service as a member of a uniformed service” under 42 U.S.C.
§ 415(a)(7)(A). We will affirm the order of the District Court,
holding that it is not.
II.
A dual status military technician is a “Federal civilian
employee” who “is assigned to a civilian position as a
technician . . . [supporting] the Selected Reserve or the armed
forces.”1 Dual status technicians, although civilians, must
maintain National Guard membership, hold a particular
military grade, and wear the appropriate military uniform while
performing civilian technician duties.2 They must also meet
certain military requirements, such as assembling periodically
for “drill and instruction, including indoor target practice” and
participating in “training at encampments, maneuvers, outdoor
target practice, or other exercises.”3
1
10 U.S.C. § 10216(a)(1)(C).
2
32 U.S.C. § 709(b)(2)–(4).
3
Id. § 502(a). A dual status technician fulfills these military
service requirements during periods when he is not working as
a civilian technician. See generally Walch v. Adjutant Gen.’s
Dep’t of Tex., 533 F.3d 289, 291 (5th Cir. 2008) (distinguishing
a dual status technician’s “full-time civilian position with the
[National] Guard, a Monday through Friday job . . . as a
‘federal technician’” from his “traditional National Guard
position”).
3
Plaintiff Floyd Douglas Newton worked as a National
Guard dual status technician from 1980 until 2013. Before and
during his time as a National Guard dual status technician,
Newton also served as a New Jersey Army National Guard
member, a military position involving weekend drills and
annual field training for which he received separate military
pay. In July 2013, Newton retired from both his National
Guard and dual status technician service. He subsequently
began receiving retirement benefits, which consisted of a
pension paid by the Defense Finance and Accounting Service
for his military service in the National Guard and an annuity
paid by the United States Office of Personnel Management
(OPM) for his service as a dual status technician.
In June 2015, Newton applied for Social Security
benefits. The Social Security Administration (SSA) notified
Newton that he qualified for retirement benefits but that the
benefits were subject to a reduction under the Windfall
Elimination Provision (WEP), which modifies the usual
statutory formula to reduce Social Security benefits for those
who receive a separate pension payment “based in whole or in
part upon his or her earnings” for which the recipient did not
pay Social Security tax.4 The SSA explained that because
Newton was receiving a civil service annuity, which
constitutes a payment “based in whole or in part upon his or
her earnings”5 for work not covered by Social Security, the
WEP applied.
Believing his civil service pension from his dual status
employment triggered an exception to the WEP for uniformed
4
42 U.S.C. § 415(a)(7)(A).
5
App. 58.
4
service, Newton requested reconsideration. But the
Administrative Law Judge and, subsequently, the SSA Appeals
Council, upheld the SSA’s original determination. Newton
sought district court review. Upholding the SSA’s decision,
the District Court for the District of New Jersey held that
Newton’s Social Security retirement benefits are subject to a
reduction under the WEP and are not eligible for the uniformed
services exception because his civil service pension is not
“based wholly on service as a member of the uniformed
service.”6 Newton now appeals that determination. Because—
albeit on different grounds—we agree with the District Court’s
conclusion, we will affirm its order, holding that Newton is not
subject to the uniformed service exception to the WEP.
III.7
Social Security benefits consist of a percentage of the
recipient’s cumulative earnings. Those with lower earnings
receive a higher percentage, whereas those with higher
earnings receive a lower percentage.8 Covered earnings, those
considered in determining a recipient’s Social Security
benefits, are earnings for which the recipient paid Social
Security tax. But if a recipient also receives a pension payment
“based in whole or in part upon his or her [uncovered]
6
Newton v. Comm’r of Soc. Sec., No. CV 18-751(RMB), 2019
WL 1417248, at *4 (D.N.J. Mar. 29, 2019).
7
The District Court had jurisdiction pursuant to 42 U.S.C. §
405(g); we have jurisdiction under 28 U.S.C. § 1291. Our
review of the District Court’s decision is de novo. T Mobile
N.E. LLC v. City of Wilmington, 913 F.3d 311, 318 n.5 (3d Cir.
2019).
8
42 U.S.C. § 415(a)(1).
5
earnings”—that is, earnings for which he did not pay Social
Security tax—the WEP applies.9 The SSA must then consider
those uncovered earnings when calculating Social Security
benefits. By considering both covered and uncovered earnings,
the WEP ensures that an individual like Newton, who receives
a separate pension, will receive a smaller percentage of his
covered earnings than he would receive if his uncovered
earnings were not taken into consideration. This prevents the
double-dipping that would result if the recipient received the
higher percentage of benefits and a separate pension.
But the WEP includes several exceptions. The
uniformed services exception, on which Newton relies, applies
to pension payments that are “based wholly on service as a
member of a uniformed service.”10 The uniformed services
exception ensures that pensions for uniformed service will not
result in a reduction of Social Security retirement benefits even
though they are based on uncovered earnings.
The narrow question before us is whether National
Guard dual status technicians qualify for the uniformed
services exception, that is, whether pensions for dual status
technician service are based “wholly on service as a member
of a uniformed service” under § 415(a)(7)(A).
Five Circuit Courts have addressed this precise
question. The Eighth Circuit has answered it in the affirmative,
while the Sixth, Ninth, Tenth, and Eleventh Circuits have
9
Id. § 415(a)(7)(A).
10
Id.
6
answered it in the negative.11 The District Court agreed with
the Eleventh Circuit and found that a pension from service as
a dual status technician is not based wholly on service in a
uniformed service. Although we disagree with the District
Court’s reasoning, we will affirm its ultimate conclusion and
hold that dual status military technicians are not covered by the
uniformed services exception.
The Court of Appeals for the Eighth Circuit concluded
in Petersen v. Astrue that a dual status technician’s OPM
pension is based “wholly on service” as a military technician.12
The court found that the plaintiff’s civil service pension
qualified for the uniformed services exception because he was
required to maintain membership in the National Guard and
was obligated to wear his military uniform while conducting
his work as a dual status technician.13 The Sixth, Ninth, Tenth,
and Eleventh Circuits, by contrast, have all held that dual status
technicians are not entitled to the uniformed services
exception.14
11
See Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011); Martin
v. Soc. Sec. Admin., Comm’r, 903 F.3d 1154 (11th Cir. 2018);
Kientz v. Comm’r, SSA, 954 F.3d 1277 (10th Cir. 2020);
Babcock v. Comm’r of Soc. Sec., 959 F.3d 210 (6th Cir. 2020);
Larson v. Saul, No. 18-35985, 2020 WL 4187266 (9th Cir. July
21, 2020).
12
633 F.3d at 637.
13
Id.
14
See Martin, 903 F.3d 1154; Kientz, 954 F.3d 1277; Babcock,
959 F.3d 210; Larson, 2020 WL 4187266.
7
The District Court here adopted the Eleventh Circuit’s
reasoning.15 The District Court noted that while the Eighth
Circuit failed to “address the use of the word ‘wholly,’ which
has special meaning in this context,” the Eleventh Circuit did
address it.16 The District Court agreed with the Eleventh
Circuit that “[b]y its plain meaning, ‘wholly’ limits the
payments covered by the uniformed services exception” and
that because dual status technicians do not “wholly perform[]
that role as a member of the National Guard,” they are not
entitled to the uniformed services exception.17 Although we
disagree with the District Court’s reliance on the word
“wholly,” we agree with its conclusion.
IV.
When interpreting a statute, we begin by asking
“whether Congress has directly spoken to the precise question
at issue” in such a way that its intent is clear and
unambiguous.18 Only if the relevant statute is silent or
ambiguous regarding the question at issue do we consider
deferring to the SSA’s interpretation of the statute. But
“[w]here the language of the statute is clear . . . the text of the
15
Newton, 2019 WL 1417248 at *4.
16
Id.
17
Id. (quoting Martin, 903 F.3d at 1166).
18
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842 (1984). It is well-settled that “[t]he first step in
interpreting a statute is to determine ‘whether the language at
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case.’” Valansi v. Ashcroft, 278 F.3d
203, 209 (3d Cir. 2002) (quoting Marshak v. Treadwell, 240
F.3d 184, 192 (3d Cir. 2001) (internal citations omitted)).
8
statute is the end of the matter.”19 Here, the plain language of
the uniformed services exception resolves for us that the
exception does not apply to a civil service pension based on
employment as a dual status technician.
In contrast to the District Court, we cannot rely on the
meaning of the word “wholly.” In determining a word’s
meaning, we look to its context.20 This is especially true of
modifying words, such as “wholly.” The uniformed service
exception reads: “[Exempt from the WEP are] payment[s]
based wholly on service as a member of a uniformed
service.”21 How we interpret this exception depends on
whether we read “wholly” to modify the type of service—
requiring the entire service to be uniformed service—or the
pension payment itself—requiring the entire payment to be for
uniformed service. The District Court, relying on the Eleventh
Circuit, assumed that “wholly” modified the nature of the
service covered by the uniformed service exception. But
“wholly” does not designate the type of service. We do not
know whether, in order to be exempt from the WEP, the service
that gives rise to the pension must be “uniformed service” in
its entirety or if the service could have been partially
“uniformed service.”
19
Steele v. Blackman, 236 F.3d 130, 133 (3d Cir. 2001).
20
Thus, a word’s placement in a sentence can determine its
meaning. A simple illustration is the difference in meaning
between the word “only” in the sentences “Only Nancy wants
salad” and “Nancy only wants salad.” In the first sentence,
“only” means that Nancy and no other person wants salad; in
the second, it means that Nancy wants salad and nothing else.
21
42 U.S.C. § 415(a)(7)(A).
9
Although the word “wholly,” as it modifies “service,”
provides little assistance in discerning the plain meaning of the
uniformed services exception, other textual indicia clearly
establish that dual status technicians are excluded from its
coverage. Whether statutory language is clear “is determined
by reference to the language itself, the specific context in
which that language is used, and the broader context of the
statute as a whole.”22 The uniformed services exception is
triggered by “payment[s] based wholly on service as a member
of a uniformed service (as defined in [42 U.S.C. 410(m)]).”23
The term “service” in this context means employment,24 and
the ordinary meaning of the word “as” is “in the capacity of.”25
As the Eleventh Circuit explained, in this context, “‘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.”26 Meanwhile, the Act defines “member
of a uniformed service” for the purpose of the uniformed
service exception as “any person appointed, enlisted, or
inducted in” the Army National Guard.27
There is no evidence to suggest that Newton was
appointed, enlisted, or inducted into the Army National Guard
22
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
23
42 U.S.C. § 415(a)(7)(A).
24
See, e.g., 42 U.S.C. § 410(a) (defining covered
“employment” as “any service performed” meeting specified
criteria).
25
See, e.g., Webster’s Third New International Dictionary 125
(1993) (providing that “as” means, among other things, “in the
character, role, function, capacity, condition, or sense of”).
26
Martin, 903 F.3d at 1164.
27
42 U.S.C. § 410(m); 38 U.S.C. § 101(27)(F).
10
for his dual status technician work. In the National Guard
context, “appointed” refers to the appointment of officers in the
state National Guard by the state governor. 28 But dual status
technicians are appointed to their civilian positions under the
civil service appointment authority.29 And Congress has
expressly stated that, “[f]or purposes of any provision of law,
a military technician (dual status) is a Federal civilian
employee.”30 Although Newton also served in the National
Guard—service for which he indeed was appointed—he has
always received two separate salaries and now receives two
separate pensions for his service in the National Guard and for
his work as a dual status technician. At most, Newton’s civil
service pension can be said to be based on service he provided
while also serving in the National Guard, but not for “service
as a member of a uniformed service.”31
V.
Newton’s OPM civil service annuity based on his dual
status technician work does not constitute a payment based “on
service as a member of a uniformed service” and is therefore
not covered by the uniformed service exception to the WEP.
28
10 U.S.C. § 12201 (appointment of reserve officers); 32
U.S.C. § 305–312 (appointment of National Guard officers).
29
See 5 U.S.C. § 2105(a)(1)(F); 32 U.S.C. § 709(c).
30
10 U.S.C. § 10216(a)(1); see also 10 U.S.C. §
10216(a)(1)(C) (dual status technicians are “assigned to a
civilian position as a technician”); 10 U.S.C. § 10216(a)(2)
(dual status technicians “shall be authorized and accounted for
as a separate category of civilian employees”).
31
42 U.S.C. § 415(a)(7)(A) (emphasis added).
11
Accordingly, we will affirm the order of the District Court,
holding that it was not so covered.
12