DAVID BRYON BABCOCK, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 19-1687
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: March 10, 2020; Decided and Filed: May 11, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0142p.06
Before: COLE, Chief Judge; BOGGS and SUTTON, Circuit Judges.
COUNSEL
ARGUED: Nicholas A. Kipa, BAHRIE LAW, PLLC, Lansing, Michigan, for Appellant. Sushma Soni, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
OPINION
COLE, Chief Judge. This case asks us to decide whether a federal civil-service pension based on work as a National Guard dual-status technician qualifies as “a payment based wholly on service as a member of a uniformed service” under the Social Security Act. We agree with the district court that it does not.
I.
Plaintiff-Appellant David Babcock joined the Michigan National Guard in 1970 as an enlisted soldier. After serving for three-and-a-half years, Babcock went to flight school, received his pilot license and, in 1975, became employed as a National Guard dual-status technician. He worked in that position for over 33 years.
By statute, a National Guard dual-status technician “is a Federal civilian employee” who “is assigned to a civilian position as a technician” while maintaining membership in the National Guard.
Babcock received military pay for his active-duty service in Iraq and his inactive-duty training, including weekend drills. See generally
Babcock retired from his position as a dual-status technician on January 31, 2009. At the time, he was classified as a grade 13, step 10, Aircraft Flight Instructor. Upon his retirement, he began receiving monthly CSRS payments from the Office of Personnel Management (“OPM“). He
On September 30, 2014, Babcock applied for Social Security retirement benefits. On his application, he confirmed that he was receiving monthly CSRS payments. The Social Security Administration (“SSA“) granted Babcock‘s application but reduced his benefits under the Windfall Elimination Provision of the Social Security Act (“WEP“) because of his CSRS pension. See
At the time, the only federal court of appeals to have addressed the applicability of the uniformed-services exception to a dual-status technician‘s CSRS pension was the Eighth Circuit. According to the Eighth Circuit, the text of the exception imposes only the “limited” requirement that “service be as a member of the uniformed service.” Petersen v. Astrue, 633 F.3d 633, 637 (8th Cir. 2011). The Eighth Circuit held that service as a dual-status technician meets this requirement, and therefore, the uniformed-services exception unambiguously applies to a pension based on service as a dual-status technician. Id. at 637–38.
In response to the Petersen decision, the SSA issued Acquiescence Ruling (“AR“) 12-1(8) to explain how it would apply the WEP and the uniformed-services exception for claimants residing within the Eighth Circuit. See 77 Fed. Reg. 51,842 (Aug. 27, 2012). Under AR 12-1(8), the WEP does not apply when a claimant receives a federal pension based wholly on employment as a dual-status technician for the National Guard; the claimant resides in a state within the Eighth Circuit; and the agency makes a benefits determination after February 3, 2011, the date of the Petersen decision. See id. at 51,842–43. For claimants residing outside of the Eighth Circuit, however, the WEP would continue to apply if the claimant receives a federal pension based on employment as a dual-status technician. See id. Accordingly, because Babcock was not a resident of the Eighth Circuit, the SSA refused to alter its initial determination that the WEP applied to Babcock‘s Social Security retirement benefits. An administrative law judge (“ALJ“) upheld the SSA‘s determination, and the Appeals Council affirmed the ALJ‘s decision.
Babcock then sought judicial review by filing suit against the Commissioner of Social Security in the United States District Court for the Western District of Michigan. While his case was pending before the district court, the Eleventh Circuit decided Martin v. Social Security Administration, Commissioner, in which it rejected the Eighth Circuit‘s analysis and held that the uniformed-services exception does not apply to dual-status technicians. 903 F.3d 1154, 1168 (11th Cir. 2018) (per curiam). Focusing on the words “wholly” and “as” in the text of the statute, the Eleventh Circuit concluded that “even if dual status technician employment is essentially military, it is not subject to the uniformed services exception if it is not wholly military in nature.” Id. at 1166 (emphasis in original). Finding it “difficult to conclude
Faced with both the Petersen and Martin decisions, the district court concluded that the Eleventh Circuit‘s analysis in Martin was “more persuasive than the Petersen court‘s analysis” and was “based on the correct application of the language of the exception,” and thus, the uniformed-services exception was inapplicable (and the WEP applied) in Babcock‘s case. Babcock v. Comm‘r of Soc. Sec., 2019 WL 2205712, at *2 (W.D. Mich. May 22, 2019). The district court also rejected Babcock‘s claim that his rights to due process and equal protection were violated because the WEP applied differently to claimants within the Eighth Circuit. Id. at *3. The district court accordingly entered judgment in favor of the Commissioner, and this timely appeal followed.
II.
We review the district court‘s decision de novo. Valley v. Comm‘r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). Because our review involves interpreting a statute that the Commissioner has authority to administer,
In deciding whether Congress has spoken directly to the issue at hand, we do not confine ourselves “to examining a particular statutory provision in isolation.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). Rather, we must read the words of the statutory provision “in their context and with a view to their place in the overall statutory scheme.” Id. at 133 (quoting Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989)); see also United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008) (“Plain meaning is examined by looking at the language and design of the statute as a whole.” (quoting United States v. Wagner, 382 F.3d 598, 607 (6th Cir. 2004))). Additionally, we are cognizant that “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” Brown & Williamson, 529 U.S. at 133. Employing the available tools of statutory interpretation, we conclude that the uniformed-services exception does not apply to a civil-service pension based on employment as a dual-status technician.
A.
The Social Security Act provides individuals with a retirement benefit based on a percentage of their pre-retirement income from “covered” employment—i.e., income that was subject to Social Security taxes. See generally
Not all employment is covered under the Act. See
Income from “noncovered” employment is exempt from Social Security taxes and not included in calculating the amount of an individual‘s Social Security benefits. See
To address this windfall effect, Congress amended the Social Security Act in 1983 to add a Windfall Elimination Provision, or WEP. Pub. L. No. 98-21, § 113(a), 97 Stat. 65 (1983); see also H.R. Rep. No. 98-25, pt. 1, at 21–22 (1983), reprinted in 1983 U.S.C.C.A.N. 219, 239–40. The WEP modifies the standard benefits formula for a recipient who is also entitled to “a monthly periodic payment” that “is based in whole or in part upon his or her earnings” for noncovered employment.
B.
That brings us to the uniformed-services exception at issue here, which Congress added in 1994. Pub. L. No. 103-296, § 308(b), 108 Stat. 1464 (1994). Under this exception, “a payment based wholly on service as a member of a uniformed service” does not trigger application of the WEP.
Aside from the terms whose meaning arises from the statute, we construe statutory terms in accordance with their plain and ordinary meaning. See, e.g., Sebelius v. Cloer, 569 U.S. 369, 376 (2013); Sunrise Coop., Inc. v. U.S. Dep‘t of Agric., 891 F.3d 652, 657 (6th Cir. 2018). In this context, the word “wholly” plainly means “to the full or entire extent” or “to the exclusion of other things.” Martin, 903 F.3d at 1163 (quoting Wholly, WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 2612 (1961)); accord Kientz v. Comm‘r, SSA, 954 F.3d 1277, 1282 (10th Cir. 2020) (defining wholly to mean “‘entirely’ or ‘exclusively‘” (quoting Wholly, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1463 (1981))). Additionally, the word “as” in this context “limit[s] the uniformed services exception only to payments for work performed in one‘s capacity or role as a member of the uniformed services.” Martin, 903 F.3d at 1164 (citing As, WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY, supra, at 125); see also Kientz, 954 F.3d at 1282 (giving the word “as” “the ordinary meaning of ‘in the role, capacity, or function of‘” (quoting As, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, supra, at 76)). Thus, the uniformed-services exception does not apply simply because an individual was a member of a uniformed service while working in noncovered employment. Rather, by its plain text, the uniformed-services exception is cabined to payments that are based exclusively on employment in the capacity or role of a uniformed-services member.
Babcock‘s CSRS pension is not such a payment. As its name suggests, the CSRS is for those employed “in the civilian service of the Government.”
The broader statutory context supports the conclusion that the uniformed-services exception does not encompass the CSRS pension of a dual-status technician. Within the Social Security Act, the uniformed-services exception operates as a qualification of the WEP, which broadly applies when a claimant separately receives a pension based on earnings from noncovered employment. See
Finally, we note that, in addition to his CSRS pension from the OPM, Babcock receives separate military retirement pay from the DFAS based on his work as a dual-status technician. There is no dispute that Babcock‘s military pension falls within the ambit of the uniformed-services exception. That Babcock receives a separate military pension to which the uniformed-services exception applies only bolsters the conclusion that his CSRS pension does not qualify for the uniformed-services exception.
C.
Babcock resists the conclusion that his CSRS pension falls outside the scope of the uniformed-services exception. He argues his CSRS pension is based entirely on his work as a dual-status technician, and this work is wholly indistinguishable from military employment because he had to maintain membership in the National Guard, hold the appropriate military grade for his position, wear a military uniform on a daily basis, and be prepared to be deployed on active duty. He argues, moreover, that his “status” as a civilian employee is irrelevant under the plain language of the statute.
We do not discount the fact that the job requirements of a dual-status technician overlap with those of other National Guard members—or that, from the perspective of the technician, the work of a dual-status technician may be materially similar to military employment. The plain language of the uniformed-services exception, however, instructs us to look at “a payment” and ask whether that payment is based exclusively on employment in the capacity or role of a member of a uniformed service. See
Additionally, though Babcock contends it is irrelevant, his designation as a “civilian” employee of the United States, “assigned to a civilian position as a technician,” see
Babcock argues that our precedents involving the Feres doctrine establish that employment as a dual-status technician is indeed military employment. See Feres v. United States, 340 U.S. 135 (1950). Several of our cases applying Feres hold that the position of a National Guard technician is “irreducibly military in nature.” Fisher v. Peters, 249 F.3d 433, 443 (6th Cir. 2001); accord Leistiko v. Stone, 134 F.3d 817, 820–21 (6th Cir. 1998) (per curiam) (quoting Leistiko v. Sec‘y of the Army, 922 F. Supp. 66, 75 (N.D. Ohio 1996)). But the Feres doctrine is about whether military personnel can sue their colleagues or the government for injuries resulting from military service. See Feres, 340 U.S. at 144–46; see also Chappell v. Wallace, 462 U.S. 296, 299 (1983) (applying Feres in the Bivens context); Fisher, 249 F.3d at 443 (extending Feres to Title VII claims). That the work of a dual-status technician is “irreducibly military” for purposes of suing other military personnel or the government does not resolve whether the role is wholly service as a member of a uniformed service for purposes of calculating Social Security retirement benefits, which focuses critically on the types and sources of a claimant‘s earnings. See
D.
Finally, we turn to Babcock‘s constitutional claims. Babcock asserts that his rights to due process and equal protection were violated because he was treated differently than a similarly situated resident of the Eighth Circuit. But “[n]o court has ever held that the mere existence of a circuit split on an issue of statutory interpretation violates due process or equal protection . . . .” Habibi v. Holder, 673 F.3d 1082, 1088 (9th Cir. 2011); see also Roberts v. Holder, 745 F.3d 928, 933 (8th Cir. 2014) (“Disagreements among the courts of appeal, or between an agency and one or more of the courts of appeal, will not by itself [sic] create an equal protection violation.“). Babcock cannot sustain a due-process or equal-protection claim solely on the basis of a circuit split.
III.
We hold that the uniformed-services exception does not apply to Babcock‘s CSRS pension. We accordingly affirm.
R. GUY COLE, JR.
CHIEF JUDGE