Martin v. Soc. Sec. Admin.

• Decision Date: 07 September 2018
• Docket Number: No. 17-12408,17-12408
• Citation: 903 F.3d 1154
• Parties: Donald Larry MARTIN, Plaintiff-Appellant, v. SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

903 F.3d 1154

Donald Larry MARTIN, Plaintiff-Appellant,

v.SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant-Appellee.

No. 17-12408

United States Court of Appeals, Eleventh Circuit.

September 7, 2018

Seth Balfour Thompson,Law Office of Seth Thompson, Cullman, AL, for Plaintiff-Appellant.

Sydney Foster, Alisa Beth Klein, U.S. Attorney General's Office, Washington, DC, Douglas Gregory Wilson, Jerome M. Albanese, Brian C. Huberty, Mary Ann Sloan, John C. Stoner, Social Security Administration, Office of the General Counsel, Atlanta, GA, Jenny Lynn Smith, U.S. Attorney Service - Northern District of Alabama, U.S. Attorney's Office, Birmingham, AL for Defendant-Appellee.

Before WILSON, JORDAN, and HIGGINBOTHAM,^* Circuit Judges.

PER CURIAM:

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 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

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.

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 category of civilian employees"¹⁸ and are exempt from the competitive service¹⁹ and requirements for reductions in Department of Defense civilian personnel.²⁰ 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, 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 (ALJ), and review by the SSA Appeals Council²⁶ —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 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 Chevron³⁵ : the threshold requirement that an agency interpretation be of 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...