STEPHEN LINZA, Plaintiff-Appellee, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellant.
No. 19-2766
United States Court of Appeals For the Second Circuit
Decided: March 8, 2021
August Term 2019; Argued: June 2, 2020
Plaintiff-Appellee Stephen Linza, a retired “dual status technician” with the National Guard, appeals the Social Security Administration‘s calculation of his Social Security retirement benefits. Linza argues that the civil service pension he received in connection with his employment as a dual status technician – a civilian position that requires concurrent National Guard membership – is not subject to reduction under the Social Security Act‘s Windfall Elimination Provision because the pension falls within an exception applicable to payments based wholly on work performed as a member of a uniformed service. The district court (Telesca, J.) granted judgment on the pleadings to Linza, and the agency appealed. Looking to the plain text of the statute and using traditional tools of statutory interpretation, we hold that a civil service pension based on federal civilian employment as a dual status technician does not fall within the uniformed service exception. Accordingly, we REVERSE and REMAND so that the district court may enter a judgment consistent with this opinion.
REVERSED.
Andrew O. Miller, Webster Szanyi LLP, Buffalo, New York, for Plaintiff-Appellee Stephen Linza.
SUSHMA SONI, Attorney, Appellate Staff, Civil Division (James P. Kennedy, Jr., United States Attorney for the Western District of New York, Alisa B. Klein, Attorney, Appellate Staff, Civil Division, on the brief), U.S. Department of Justice, Washington, DC, for Defendant-Appellant United States of America.
RICHARD J. SULLIVAN, Circuit Judge:
This appeal concerns whether Plaintiff-Appellee Stephen Linza‘s federal civil service pension from his work as a National Guard “dual status technician”
A dual status technician is “a Federal civilian employee” who is required to maintain membership in the National Guard while “assigned to a civilian position as a technician.”
Urging reversal, the government argues that the plain meaning of the provision at issue, along with its statutory context, makes clear that a dual status technician‘s federal civil service pension is not “based wholly on service as a member of a uniformed service.” We agree with the government and reverse.
I. BACKGROUND
A. Statutory Scheme
The Social Security Act pays individuals 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 (“covered income“). See
But some employment is not covered under the Act. See
Further, noncovered positions often provide non-Social Security retirement pay through pensions or annuity plans, like the pension provided under the Civil Service Retirement System (“CSRS“) for noncovered civil service employees. Thus, under the standard formula, federal employees who receive a civil service pension for noncovered work and a favorably weighted Social Security benefit
In 1983, Congress amended the Act to eliminate this unintended windfall by introducing the Windfall Elimination Provision (“WEP“).
Congress amended the WEP in 1994, adding the “uniformed service exception” at issue here. Id.
B. Facts
Linza joined the New York Army National Guard in 1968. In 1977, he enlisted in New York‘s Air National Guard and worked as a dual status technician for the Air National Guard from 1977 until April 2008, when he retired. As noted, a dual status technician is defined as a “Federal civilian employee” who “is assigned to a civilian position as a technician” and is required to be a member of the National Guard.
As a member of the National Guard, Linza performed fifteen days of active duty a year, in addition to attending weekend drills in uniform once a month,
For his active-duty service and inactive duty training, Linza received military pay, see
For his work as a dual status technician, Linza received civil service pay from the Office of Personnel Management. Those wages were noncovered and therefore not subject to Social Security taxes. See Appellant‘s Br. at 13 (explaining that at the time Linza “entered federal civil service, the term ‘employment’ for purposes of Social Security coverage excluded work performed by federal civilian employees, such as [Linza], who participated in a federal retirement system“).
C. Procedural History
Linza applied for Social Security benefits based on his years of covered military employment. The Social Security Administration (the “SSA“) reduced Linza‘s benefits under the WEP due to his receipt of a monthly civil service retirement pension, which was based on his noncovered civil service. The SSA did not reduce his benefits as to his military pension, which was based at least partially on his noncovered military pay for inactive duty before 1977. The parties agree that the military pension falls within the uniformed service exception.
Linza challenged the SSA‘s application of the WEP to his civil service pension. He sought reconsideration, arguing that he was eligible for the uniformed service exception to the WEP. The SSA affirmed its decision. Linza requested a hearing before an Administrative Law Judge, who concluded the
Linza then sought review in the district court, which granted judgment on the pleadings to Linza, reversing the Commissioner‘s decision and remanding to the agency. At that time, the Eighth and Eleventh Circuits had reached different conclusions regarding whether a dual status technician‘s civilian pension fell within the uniform service exception. The Eighth Circuit in Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011), held that the exception applied, while the Eleventh Circuit in Martin v. Social Security Administration, Commissioner, 903 F.3d 1154 (11th Cir. 2018), held that it did not.
Adopting the Eighth Circuit‘s reasoning, the district court found the uniformed service exception to be “clear and unambiguous” in Linza‘s favor. Joint App‘x at 80. Noting, among other things, that dual status technicians “apply[] [their] technical expertise for the service of, and at the direction of, the National Guard,” the district court rejected the notion that Linza worked in a bifurcated capacity. Id. The district court instead determined that dual status technicians “perform their [technician] work as members of the National Guard” in one continuous role with special technical capabilities. Id. at 80–81. Concluding there
In August 2019, the Social Security Commissioner filed a timely notice of appeal. Since then, the Third, Sixth, Ninth, and Tenth Circuits have joined the Eleventh Circuit in holding that a civil service pension payment based on work as a dual status technician does not trigger the uniformed services exception. See Newton v. Comm‘r Soc. Sec., 983 F.3d 643, 650 (3d Cir. 2020); Larson v. Saul, 967 F.3d 914, 926 (9th Cir. 2020), petition for cert. filed, 2020 WL 8571670 (U.S. Dec. 18, 2020) (No. 20-854); Babcock, 959 F.3d at 218;1 Kientz v. Comm‘r, SSA, 954 F.3d 1277, 1285–86 (10th Cir. 2020). We now do the same.
II. STANDARD OF REVIEW
This Court reviews de novo a district court‘s decision awarding judgment on the pleadings. Velarde v. GW GJ, Inc., 914 F.3d 779, 783 (2d Cir. 2019). When reviewing an agency‘s legal determination or interpretation of a statute that it is
In either case, however, courts first consider “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43; see also United States v. Am. Soc‘y of Composers, Authors & Publishers, 627 F.3d 64, 72 (2d Cir. 2010) (“When the language of a statute is unambiguous, judicial inquiry is complete.” (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 290 (2d Cir. 2002))); Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 509 (2d Cir. 2017) (“Although the Chevron and Skidmore deference standards differ in application, they are similar in one respect[:] we will defer to the agency‘s interpretation under [either] standard only when the statutory language at issue is ambiguous.“).
“As in all statutory construction cases, we begin with the language of the statute.” Am. Soc‘y of Composers, 627 F.3d at 72 (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)). We first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Id. (quoting Barnhart, 534 U.S. at 450). In determining whether Congress has spoken directly on an issue, courts should not examine “a particular statutory provision in isolation,” but rather should read the words in “context and with a view to their place in the overall statutory scheme” and “fit, if possible, all parts into an harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000) (internal quotation marks and citations omitted). Further, “the meaning of one statute may be affected by other[s].” Id. at 133. “In construing provisions . . . in which a general statement of policy is qualified by an exception, we usually read the exception narrowly in order to preserve the primary operation of the provision.” Comm‘r v. Clark, 489 U.S. 726, 739 (1989). Thus, as an exception to the general rule establishing the WEP reduction, the uniformed service exception should be construed narrowly.
III. DISCUSSION
At issue is whether Linza‘s pension for his work as a dual status technician is “a payment based wholly on service as a member of a uniformed service.”
We agree with the SSA and reverse. Linza‘s civil service pension is not a payment based exclusively on work performed in the role of a uniformed service member. And as we reach this conclusion based on the plain meaning of the statute, we need not even reach considerations of the deference owed to the agency‘s interpretation.
We start with the text of the uniformed services exception: “a payment based wholly on service as a member of a uniformed service.”
The exception further clarifies that not only must the payment be “based on” the individual‘s service as a member of a uniformed service, it must also be “based wholly on” such service.
Linza‘s pension – undoubtedly a payment – most directly derives from earnings he made in the dual status technician job. To fall within the exception, then, the work he performed must have been conducted exclusively in the capacity of a member of the National Guard. See Kientz, 954 F.3d at 1283 (explaining that
Here, although Linza worked for the National Guard, his employment as a dual status technician meant that he was “assigned to a civilian position.”
This conclusion is supported by Congress‘s conception of the dual status technician position as distinct from National Guard membership. The process by which one becomes a dual status technician is separate from that by which a person becomes a “member of a uniformed service.” The Act defines the latter as “any person appointed, enlisted, or inducted in” the Air National Guard (or other uniformed services branches).
Having enlisted in the National Guard, Linza became a member of a uniformed service under the Act‘s definition. But Linza was neither “appointed, enlisted, [n]or inducted” into his dual status technician position within the meaning of that provision. Rather, he came into his dual status technician role only through a civilian appointment process not covered by that definition.
Linza‘s service as a dual status technician therefore was not performed solely, or even primarily, as an enlisted service member. Accord Roper v. Dep‘t of Army, 832 F.2d 247, 248 (2d Cir. 1987) (noting that military departments are meant to include only civilian employees, not enlisted personnel). Indeed, we have previously acknowledged that dual status technicians work in different capacities with different duties. See Overton, 373 F.3d at 86, 92 (distinguishing between Overton‘s work week responsibilities performed “[i]n his civilian capacity as an aircraft electrician” and the training responsibilities that he performed “[i]n his military capacity as a member of the Guard“). Put differently, Linza could not become a dual status technician simply by gaining or using special technical skills during his enlistment in the National Guard; instead, he entered that job through
Although Linza insists that his technician position was inextricably linked to his membership in the National Guard, the fact remains that Congress defined dual status technicians as “Federal civilian employees” and assigned distinct civilian attributes to the position not usually attendant to service purely as a member of the National Guard. For starters, Linza‘s compensation as a dual status technician was subject to the federal civilian pay scale. He received that civilian pay for work performed generally during the work week, receiving separate military pay for his inactive duty drills, which took place on the weekends, and his annual training. See N.Y. Council, Ass‘n of Civilian Technicians v. Fed. Lab. Rels. Auth., 757 F.2d 502, 505 (2d Cir. 1985), abrogated on other grounds by F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009). Linza also received separate military pay when he was called to active duty, and indeed was required to take leave from
IV. CONCLUSION
For the foregoing reasons, we REVERSE the decision of the district court and REMAND so that the district court may enter a judgment consistent with this opinion.