Petersen v. Astrue

• Decision Date: 03 February 2011
• Docket Number: No. 09–2374.,09–2374.
• Citation: 633 F.3d 633
• Parties: David PETERSEN, Appellee,v.Michael J. ASTRUE, Commissioner of Social Security, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

633 F.3d 633

164 Soc.Sec.Rep.Serv. 19

David PETERSEN, Appellee,

v.Michael J. ASTRUE, Commissioner of Social Security, Appellant.

No. 09–2374.

United States Court of Appeals, Eighth Circuit.

Submitted: March 11, 2010.Filed: Feb. 3, 2011.

Sydney Foster, DOJ, AAG, argued, Thomas Mark Bondy, DOJ, AAG, on the brief, Washington, DC, for appellant.Roger D. Moore, argued, Lincoln, NE, for appellee.Before SMITH, BENTON, and SHEPHERD, Circuit Judges.SHEPHERD, Circuit Judge.

The Commissioner of Social Security appeals the district court's ¹ judgment reversing the Commissioner's decision to apply the Windfall Elimination Provision to David Petersen's old-age social security benefits. As we agree with the district court's well-reasoned decision, we affirm.

I.

A.

As this case intimately involves the Windfall Elimination Provision (WEP), we begin with a brief description of that provision. The WEP was enacted in 1983 to eliminate the unintended benefits windfall that occurs when workers who split their career between covered employment (required to pay Social Security taxes) and non-covered employment (exempt from Social Security taxes). 42 U.S.C. § 415. This non-covered employment is often federal employment that, prior to 1984, was exempt from Social Security taxes because federal employees contributed to the federal civil service pension which was “designed to take the place both of social security and a private pension plan for workers who remain in [federal] employment throughout their careers.” See H.R.Rep. No. 98–25, at 22 (1983), reprinted in 1983 U.S.C.C.A.N. 219, 240. Prior to the passage of the WEP, in calculating a beneficiary's primary insurance amount from the beneficiary's average monthly earnings, the Social Security Administration (SSA) did not consider whether the earnings came from covered or non-covered employment. As a result, beneficiaries that had a split career received both full Social Security benefits and whatever pension benefits were provided by the non- covered employment. The WEP requires a calculation of the Social Security benefit under a modified formula to account for the civil service pension benefits.

The WEP is not without statutory exceptions, however. One of those exceptions is at the heart of this case. The WEP's modified formula is not used if the claimant is receiving “a monthly periodic payment ... based wholly on service as a member of a uniformed service (as defined in [42 U.S.C. § 410(m) ] ).” 42 U.S.C. § 415(a)(7)(A). Under section 410(m), a “member of a uniformed service” includes, among others, “any person appointed, enlisted, or inducted in a component of the ... Air Force ... (including a reserve component as defined in [38 U.S.C. § 101(27) ] ).” 42 U.S.C. § 410(m). The Air National Guard of the United States is a reserve component of the Air Force. 38 U.S.C. § 101(27)(G).

B.

Between 1972 and 2000, Petersen worked for the Nebraska Air National Guard as a National Guard technician. Under the National Guard Technicians Act of 1968, employees such as Petersen were deemed “dual status” federal employees, a hybrid civilian and military position. 10 U.S.C. § 10216(a). Although Petersen was paid by the hour similar to normal civil servants, he was required to be a member of the Nebraska Air National Guard, to participate in weekend and summer military training and drills, to wear military uniform while on the job, and to maintain military physical standards. In October 2000, Petersen retired from his National Guard technician's position and began drawing a civil pension based on his service. Part of the pension was paid by the Office of Personnel Management (OPM), the civilian component of the federal government. In April 2006, Petersen sought old-age retirement benefits from the SSA. Although he received an award of benefits, the SSA reduced those benefits under the WEP.

C.

On initial consideration and reconsideration, the SSA determined that Petersen's benefits were subject to WEP's modified formula. At Petersen's request, this decision was reviewed by an Administrative Law Judge (ALJ). The ALJ reversed the decision, holding that a prior decision from the United States District Court for the Western District of Missouri held that National Guard technicians were on full-time military duty when performing their jobs. The ALJ found, therefore, that the pension Petersen received for his National Guard technician work was excepted from the WEP. On its own motion, the Social Security Appeals Council initiated review of the ALJ's decision and reversed, holding that the exception to the WEP did not apply to Petersen.

Petersen sought review by the district court. The district court recognized that the “sole issue raised by the parties is whether [Petersen's] OPM pension is ‘a payment based wholly on service as a member of a uniformed service.’ ” The district court held that Petersen's pension was payment based on “service as a member of a uniformed service” and thus subject to the WEP exception. ²

Undeterred, the SSA sought an order to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), arguing that the district court's decision that Petersen was a member of a uniformed service was inconsistent with the fact that military technicians had civilian status. In a thorough and well-reasoned decision, the district court rejected this argument and held that the WEP exception lacks any reference to the person's “status” and only requires that the pension payments be based “wholly on service” as a member of the uniformed services.

In this appeal, the SSA raises the following arguments: (1) the SSA's interpretation of the statute is entitled to deference should the statute be deemed to be ambiguous; (2) under the plain language of the statute, Petersen's work as a National Guard Technician was not “service as a member of a uniformed service;” and (3) the legislative history supports the conclusion that Congress intended, in enacting the uniformed services exception, to eliminate the differential treatment of individuals on inactive duty training status between 1956 and 1988.

II.

A.

We have appellate jurisdiction to consider this appeal under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. As we are charged with deciding a question of statutory interpretation, our review of the district court's order and the SSA decision is de novo. See Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir.2004).

We have indicated previously that “appropriate deference” should be given to the SSA's interpretation of the Social Security Act. See Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir.1992). Deference is appropriate where “Congress has, either explicitly or implicitly, left a gap in a statute to be filled by a particular agency.” TeamBank, N.A. v. McClure, 279 F.3d 614, 618 (2002) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). However, we find, as explained below, that the meaning and intent of section 415(a)(7)(A) is clear and unambiguous, therefore it is unnecessary for us to defer to the SSA's interpretation of the statute. See Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778 (“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.”).

B.

Under 32 U.S.C. § 709, the statute that codified the National Guard Technician Act of 1968, National Guard technicians were given “dual status” roles, defined as

Federal civilian employee[s] who ... [are] required as a condition of that employment to maintain membership in the Selected Reserve; and [are] assigned to a civilian position as a technician in the organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issued to the Selected Reserve or the armed forces.

10 U.S.C. § 10216(a)(1)(B)-(C). To maintain employment, National Guard technicians are required to maintain their membership in the National Guard, to “[h]old the military grade specified by the Secretary concerned for that position,” and, while performing the work of a National Guard technician, to “wear the uniform appropriate for the member's grade and component of the armed forces.” 32 U.S.C. § 709(b).

The SSA argues that, despite the various military requirements imposed upon National Guard technicians, the fact that they are defined as “Federal civilian employee[s]” necessarily means that their work was “by” a member of the uniformed service and not “as” a member of the uniformed service. The SSA argues that, under the plain language of the statute, “service as a member of a uniformed service” is limited “to military duties performed while acting in one's...