[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
FILED
U.S. COURT OF APPEALS
No. 02-12623
ELEVENTH CIRCUIT
APRIL 16, 2003
D.C. Docket No. 01-00230-CV-OC-GRJ
THOMAS K. KAHN
CLERK
RALPH STROUP,
Plaintiff- Appe llant,
versus
JO ANN E B. BARN HART, So cial Security Commissioner,
Defendant-Appellee.
_________________________
Appe al from th e United States D istrict Cou rt
for the Middle District of Florida.
_________________________
(April 16, 2003)
Before TJOFLAT, ANDE RSON and CUDAHY*, Circuit Judges.
CUDA HY, Circuit Judge:
Former police officer Ralph Stroup appeals a district court decision
uphold ing the S ocial Sec urity Ad ministratio n’s calcula tion of h is disability b enefits
*
Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
under th e wind fall elimina tion pro vision o f the So cial Secu rity Act, 4 2 U.S .C. §
415(a)(7). Finding the Commissioner’s construction of the windfall elimination
provisio n reason able, we affirm th e decision of the dis trict court.
I.
Ralph Stroup began working for the Kokomo, Indiana, Police Department
(KPD) in January 1966. Under Indiana law and the KP D pension plan, he later
qualified for retirement with pension benefits after completing twenty years of
service. According to the City of Kokomo and the KPD, Stroup met this service
requirement on December 31, 1985, upon completion of a shift ending at 4 p.m.1
Stroup did not im mediately retire; he re mained employ ed with the KP D until
March 1988, and continued to work elsewhere until 1998. In 1996 and in 1998,
Stroup applied f or Soc ial Secur ity disability b enefits on the basis o f his
osteoarthritis and other ailments. The Social Security Administration (SSA) found
him eligible for disability benefits as of January 1, 1996.
The present dispute has to do with the calculation of those benefits. It turns
out that December 31, 1985, was legally a very consequential time to qualify for
1
A City of Kokomo letter actually states that Stroup became eligible on December 31,
1986, but the Commissioner concedes that this must have been a clerical error.
2
retirement. Two years earlier, Congress had enacted the windfall elimination
provision (WEP) to Social Security to eliminate the unintended “double dipping”
that accrued to workers who split their careers between employment taxed for
Social S ecurity be nefits (“co vered”) and em ployme nt exem pt from Social S ecurity
taxes (“noncovered”). The SSA determines a beneficiary’s primary insurance
amount (the figure on which the amount of actual benefits is partially based) from
his average monthly earnings. 42 U.S.C. § 415. Prior to the enactment of the
WEP , this calculation was completed without reg ard to wh ether the individ ual’s
wages were covered or noncovered. As a result, an individual who had worked for
both covered and noncovered wages in the course of his employment history
would receive b oth full S ocial Sec urity ben efits and w hatever p ension b enefits
were provided by his noncovered employment. The WEP, as codified at 42 U.S.C.
§ 415(a)(7), provides that the primary insurance amount for such individuals be
computed using a modified formula. However, the WEP applies only if the
applicant “first becomes eligible after 1985 for a monthly periodic payment.” 42
U.S.C. § 415(a)(7)(A). Individuals who become “eligible” prior to 1986 are not
subject to the WEP.
Stroup completed his required twenty years of service on the last day of
1985. The SSA determined that the WEP was applicable, significantly reducing
3
(by as m uch as 4 0-60% , accordin g to Stro up) his S ocial Sec urity disab ility
payments. This determination was upheld upon reconsideration by the SSA and
also by an Administrative Law Judge (ALJ). The ALJ reasoned that, since Stroup
worked through December 31, 1985, he could not have been eligible to receive a
pension until January 1, 1986–after 1985. Stroup appealed this decision to federal
district court, where a magistrate judge affirmed the ALJ’s decision. Stroup
appeals, arguing that he should not be subject to the WEP.2
II.
Questio ns of statu tory interp retation ar e review ed de no vo. United States v.
Alborola-Rodriguez, 153 F.3d 1269, 1271 (11th Cir. 1998). However, if we find
the statute in question to be ambiguous, we must accord proper deference to the
interpretation adopted by the agency to which Congress has delegated the
2
Stroup in his briefs also asked us to remand the case so that a complete review of his earnings
record can be conducted. However, any concerns about the accuracy or completeness of his
earnings record must be presented first to the SSA through its administrative appeals process.
Stroup has not received a “final decision” from the SSA with respect to his earnings record that
is subject to judicial review. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000); Crayton v.
Callahan, 120 F.3d 1217, 1220 (11th Cir. 1997). Stroup should, therefore, raise these concerns
with the SSA.
Stroup does not challenge the constitutionality of the WEP. We note that other courts
have considered and affirmed the constitutionality of the provision. See Rudykoff v. Apfel, 193
F.3d 579 (2d Cir. 1999); Das v. Dep’t of Health and Human Servs., 17 F.3d 1250, 1255-56 (9th
Cir. 1994).
4
adminis tration of the statute. See United States v. Mead Corp., 533 U.S. 218
(2001 ); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1 984). The Ninth Circuit has noted that the key relevant clause in the WEP,
“who f irst becom es eligible a fter 198 5 for a m onthly p eriodic p ayment,” is on its
face amb iguous . Das v. Dep’t of Health and Human S ervs., 17 F.3d 1250, 1253-54
(9th Cir. 1994). We agree. Standing alone, the statutory language could be
interprete d to sup port eithe r Strou p’s or the Comm issioner’s position in this case .
The statute, however, does not stand alone. Acting pursuant to its broad statutory
authority, 42 U.S.C. § 405(a)3, the SS A issue d a regu lation spe cifying w hat is
meant b y “eligibility”: “W e consid er you to first beco me eligib le for a m onthly
pension in the first month for which you met all requirements for the pension
except that you were working or had not yet applied.” 20 C.F.R. § 404.213(a)(3)
(emphasis added).4
According to the statute, for Stroup n ot to be subject to the WEP , he must
have be come “elig ible” for h is pensio n befor e 1986 –i.e., in D ecembe r 1985 .
3
42 U.S.C. § 405:
(a) Rules and regulations; procedures. The Commissioner of Social Security shall
have full power and authority to make rules and regulations and to establish procedures, not
inconsistent with the provisions of this title, which are necessary or appropriate to carry out such
provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide
for the nature and extent of the proofs and evidence and the method of taking and furnishing the
same in order to establish the right to benefits hereunder.
4
In contrast, a person becomes “entitled” to benefits once he or she has actually stopped working
and applied. See 20 C.F.R. 404.203.
5
Unde r the defin ition of elig ibility prov ided by th e regulatio n, he clear ly had no t.
The firs t month for which he met all the requirements was January 1986. To
discern the operation of the critical word “for,” consider two alternatives. Had
Stroup comple ted twen ty years of service b y Nov ember 3 0, he w ould ha ve met all
the requirements for his pension for the entire m onth of Decem ber. Th e result
would be less clear had Stroup completed his twenty years of service in mid-
Decem ber. In th at situation , Stroup would have m et all the req uiremen ts for his
pension for part of the month of December, and arguably would still have become
eligible be fore 19 86 (sinc e the regu lation do es not ex plicitly state th at eligibility
begins o nly in the f irst full month). Because here Stroup worked through
Decem ber 31, th e oppo site result is in dicated: H e did no t become eligible u ntil
January 1986. H ad the reg ulation re ad, instead , that a pers on beco mes eligib le in
the month in which he or sh e meets all r equirem ents for a pension , Stroup would
have had a stronger case.
Stroup argues that the § 404.213(a)(3) definition of eligibility denies the
statute’s plain meaning. But, as we noted, the statute is ambiguous and has no
plain meaning. Thus, we must determine the degree of deference to give the SSA
regulation under Mead. The proper level of deference depends on the
circumstances of each case, including the presence of congressionally delegated
6
agency a uthority, th e form o f the agen cy action a nd, for th ose situatio ns not cle arly
meriting Chevron deference, the factors laid out in Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944). 5 Mead, 533 U .S. at 227 -35. H ere, the S SA ar gues tha t its
regulation is due Chevron deferen ce, mean ing that it sh ould be upheld as long a s it
is reason able and not con trary to clea r congr essional in tent. Chevron, 467 U.S. at
842-4 3. Strou p agrees that “cons iderable w eight sho uld nor mally be a ccorded ” to
the SSA’s statutory constructions. Appellant’s Opening Br. at 10. The Supreme
Court recently considered, in Barnhart v. Walton, 535 U.S. 212, 217-22 (2002), the
degree of deference due to a statutory interpretation by the SSA in the form of a
regulation formally promulgated pursuant to 42 U.S.C. § 405(a). The Court
concluded that “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 th e questio n over a long pe riod of tim e all indicate that Chevron provid e[d],”
for that case, “the appropriate legal lens.” Walton, 535 U .S. at 222 . Especia lly in
the absence of any argum ent to the contrary, we believe that these same factors,
including especially the undeniably interstitial nature of the question at hand,
5
These other factors include “the thoroughness evident in [the agency action’s] 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.” Skidmore v. Swift & Co.,
323 U.S. at 140.
7
dictate that Chevron should also apply to the case before us.
Stroup provid es no pe rsuasive argum ent that the regulatio n is unre asonab le.
We star t by notin g, in disag reemen t with S troup, th at the lang uage of the statute
does no t preclud e the interp retation g iven it by th e Com mission er. See Walton,
535 U .S. at 218 . Stroup ’s other ar gumen ts also fail to rebut Chevron’s
presum ption tha t the SS A’s inter pretation of the statu te should be contr olling.
Stroup argues th at the Co mmissio ner sho uld follo w the m andate o f 20 C.F .R. §
404.213(a)(3), which requires the SSA to “consider all applicable service used by
the pension-paying agency,” and defer to the KPD’s belief that Stroup became
“eligible to retire” after his shift on December 31. The Commissioner is
considering all applicable service, but does not have to accept KPD’s statement as
a valid leg al conclu sion w hen the S SA h as its ow n definitio n of “eligib ility” that is
controlling here. Stroup also points to intra-agency documentation showing that
the SSA was not always certain that the WEP applied to Stroup.6 District Ct. Tr. at
6
The relevant part of this document, entitled “Claims Folder/Material Transmittal”, states:
We need to look at the date they were eligible to receive the pension as opposed to the
date they were eligible to retire, as they are not necessarily the same. If he was not
eligible to retire until COB on 12/31/85, it would seem highly unlikely that he would be
eligible to the pension prior to 1/1/86. The pension plan would need to provide that he
could receive a pension for at least one day of December 1985 for the exemption to the
met.
There’s not much in writing about this. An old NEWS item from 11/27/85 that I kept a
copy of stated: ‘Those eligible for either a Social Security benefit or a non-covered
pension prior to 1986 are exempt from WEP. This means that a Civil Service retiree with
30 years of service who attains age 55 on December 15, 1985 is first eligible for a
8
40. First, upon review of the document, we do not believe it evinces any
“struggle” in the SSA’s interpretation and application of the WEP, as Stroup has
characterized it. Second, a temporary, nonpublic uncertainty (here, an
acknowledgment that there is “not much in writing” on point and the use of the
qualifier “probably”) can hardly bind the Commissioner in this proceeding. At
most, inconsistency in an agency’s position is one factor in determining how much
deferen ce is ow ed, Mead, 533 U .S. at 228 , and w e believe th at Chevron deference
is owed here. Fin ally, we n ote that the docum ent’s reaso ning an d conclu sion is
entirely co nsistent w ith respec t to Strou p’s situatio n. The o nly argu able
inconsistency in the document is an internal one, and relates to whether a person
qualifyin g for retir ement in mid-D ecembe r 1985 would be subje ct to the W EP, a
question not before us.
If anything, the C ommission er has prov ided much evidence of th e SSA ’s
consistency in its interpretation and application of the WEP, further validating
deference. For example, the SSA’s Program Operations Manual System (POMS)
states that for claimants to be free from the WEP under an early-out retirement
provision, they “must provide evidence” that they “could have received a pension
pension for the month of January 1986. Therefore WEP applies.’ This is similar to your
situation in that even though the eligibility requirements for retirement were met in
12/85, pension eligibility (probably) did not exist until 1/86.
(The word “probably” was apparently added with a pen (under a caret) after the document was
typed and printed.)
9
paymen t for Decem ber 198 5 or earlie r.” PO MS D G 369 6.D3 ( empha sis added ).
While th e POM S does not hav e the forc e of law , it can be p ersuasiv e. Bubnis v.
Apfel, 150 F .3d 177 , 181 (2 nd Cir. 1 998); Davis v. Sec’y of Health and Human
Servs., 867 F .2d 336 , 340 (6 th Cir. 19 89); Evelyn v. Schweiker, 685 F.2d 351, 352
n.5 (9th Cir. 198 2). The Comm issioner’s interpreta tion is also consisten t with
Congressional understanding of the WEP as evinced in a conference report
discussin g a mod ification o f the statute . See H.R. Conf. Rep. No. 100-1104
(1988 ), reprinted in 1988 U .S.C.C .A.N. 5 048, 53 22 (des cribing “th e first mo nth
the individual is eligible for both . . . pension and social security ” as “the first
month he or she could receive both . . . benefits if he or she applied for them–the
month of ‘concurrent eligibility’”).
Finally, we note that our holding today is in harmony with other courts that
have ad dressed the interp retation o f the W EP. See Johnson v. Sullivan, 777 F.
Supp . 741, 74 4 (W.D . Wisc. 1 991) (“A ccordin gly, an ind ividual w ho turn s 62 in
Decem ber . . . is ‘eligib le’ for . . . ben efits in Jan uary.”); see also Das, 17 F.3d at
1254 (citing the above conference report and holding that Das was subject to the
WEP because, although his pension plan vested prior to 1986, he could not have
received benefits before 1986 since he turned 62 in 1988).
10
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
11