Kientz v. Commissioner, SSA ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 1, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
STEVEN KIENTZ,
Plaintiff - Appellant,
No. 18-3240
v.
COMMISSIONER, SSA,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 5:17-CV-04067-SAC)
_________________________________
Roger D. Moore, Rehm, Bennett, & Moore, P.C., LLO, Lincoln, Nebraska, for Plaintiff-
Appellant.
Sushma Soni, Attorney (Joseph H. Hunt, Assistant Attorney General, Stephen R.
McAllister, United States Attorney, and Alisa B. Klein, Attorney, with her on the brief),
U.S. Department of Justice, Washington, DC, for Defendant-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, MURPHY, and CARSON, Circuit Judges.
_________________________________
CARSON, Circuit Judge.
_________________________________
A dual status technician occupies a hybrid role—created by Congress under 10
U.S.C. § 10216—that includes a balance of traditionally civilian and traditionally
military responsibilities. Dual status technicians are federal civilian employees who
perform “maintenance and repair of supplies or equipment issued to” reserve
components of the United States military branches, including the National Guard.
10 U.S.C. § 10216(a)(1)(C). A dual status technician may participate in the Civil
Service Retirement System and receive a pension in retirement. This case requires us
to consider whether a dual status service technician’s civil service pension is “based
wholly on service as a member of a uniformed service” under 42 U.S.C.
§ 415(a)(7)(A). Our jurisdiction to do so arises under 28 U.S.C. § 1291.
I.
Plaintiff Steven Kientz spent many years as a dual status technician with the
Kansas Army National Guard, where he worked as a mechanic on electronic
measurement equipment. Plaintiff’s position required him to simultaneously serve as
a member of the National Guard, a second job with separate pay and separate
responsibilities. In retirement, Plaintiff receives a monthly pension payment under
the Civil Service Retirement System based on his service as a dual status technician.
Plaintiff also receives Social Security retirement benefits based on contributions he
made to the Social Security system from his separate pay as a National Guard
member. And this matters because the amount of Plaintiff’s Social Security
retirement benefits depends on how we classify Plaintiff’s employment, and
specifically his civil service pension in particular, under the Social Security statutory
scheme. We begin our analysis with a description of the relevant statutory
background.
2
A.
The Social Security Administration (SSA) calculates an individual’s Social
Security retirement benefits according to a statutory formula. See 42 U.S.C. § 415.
The formula determines how much money an individual receives from the SSA in
retirement based partially on how much the individual paid into the system via Social
Security taxes.1 See id. From the SSA’s perspective, there are two types of civilian
employment: covered and noncovered. If an employer withholds Social Security
taxes from an individual’s paycheck, the individual works in covered employment.
See 20 C.F.R. § 404.1001(a)(1). If not, the individual works in noncovered
employment. See 42 U.S.C. § 410(a)(5); 20 C.F.R. § 404.1018. And only those who
work in covered employment receive the full measure of Social Security retirement
benefits because covered employees pay into the Social Security system while
noncovered employees do not. See 42 U.S.C. § 415. Noncovered employees (at one
time including civil service employees) often receive a pension instead of Social
Security retirement benefits because these employees did not pay into the Social
Security system. See 20 C.F.R. § 404.1018.
1
Employees and employers generally pay Social Security taxes to fund the
“Federal Old-Age and Survivors Insurance Trust Fund.” 42 U.S.C. § 401(a). That
fund pays out Social Security retirement benefits, administered by the SSA, to
qualifying “old-age” beneficiaries based, in part, on beneficiaries’ past contributions
to the fund. See id.; see also Francine Lipman & Alan Smith, The Social Security
Benefits Formula and the Windfall Elimination Provision: An Equitable Approach to
Addressing ‘Windfall’ Benefits, 39 J. Legis. 181, 185 (2013).
3
In some instances, there are individuals who spend their careers in both
covered and noncovered positions. These people stand to receive both a civil service
pension and Social Security retirement benefits. And such persons could ultimately
receive a windfall not available to their peers who worked solely in covered or
noncovered positions. The windfall occurs because of the way the Social Security
formula works. The statutory formula provides persons with lower covered earnings
a greater percentage (vis-à-vis what they paid in) of Social Security retirement
benefits than persons with higher covered earnings. See 42 U.S.C. § 415(a)(1)(A)(i)–
(iii). Thus, persons with both covered and noncovered earnings stand to receive a
windfall from Social Security. See id.
To address this inequity in the Social Security system, Congress enacted the
Windfall Elimination Provision (WEP). Social Security Amendments of 1983, Pub.
L. No. 98–21, § 113, 97 Stat. 65, 76 (codified at 42 U.S.C. § 415(a)(7)(A)). The
WEP modifies the usual statutory formula to proportionally reduce Social Security
retirement benefits for any individual who also receives “a monthly periodic
payment”—such as a pension payment—“based in whole or in part upon his or her
earnings” for noncovered work. Id. But the WEP is not without its own exceptions.
Relevant to this case, Congress decided that certain individuals defending our
country as members of the armed forces should not be subject to the reduction. Thus,
Congress created an exception to the WEP for any monthly periodic payment “based
wholly on service as a member of a uniformed service.” Id. (we call this the
“uniformed services exception”). Thus, a typical military pension does not reduce an
4
individual’s Social Security retirement benefits from covered employment under the
WEP, even if the individual earned the military pension through noncovered
employment. Id.; see also 20 C.F.R. § 404.213(e)(9).
B.
Plaintiff worked as a dual status technician from 1978 to 2007. To obtain and
keep the dual status technician position, Plaintiff had to remain a member of the
National Guard, wear a military uniform at work, and maintain military fitness
standards. 32 U.S.C. § 709(b)(2)–(4), (j)(2). As a member of the National Guard,
Plaintiff participated in periodic military training drills separate from his time as a
dual status technician. See 32 U.S.C. § 502; 37 U.S.C. § 206.
Plaintiff received separate military pay for his National Guard service, apart
from his dual status technician job, from 1978 to 2007.2 See 5 U.S.C. § 5534. And
Plaintiff paid Social Security taxes on those National Guard wages—covered
employment. He now receives Social Security retirement benefits based on his
contributions to Social Security from his National Guard wages. See 42 U.S.C.
§ 410(l)(1)(A), (B). At the same time, Plaintiff also receives a military pension from
a United States Department of Defense agency based exclusively on his National
Guard service.
2
Prior to becoming a dual status technician, Plaintiff served in the active duty
of the United States Army from 1972 to 1976. Plaintiff was also on active duty for
about two months in 2005 during his National Guard tenure.
5
But for his dual status technician work, Plaintiff received civil service pay
because Congress classified dual status technicians as federal civilian employees.
10 U.S.C. § 10216(a)(1). Importantly, the government did not withhold Social
Security taxes from Plaintiff’s civil service pay—thus rendering it noncovered
employment. 42 U.S.C. § 410(a)(6)(A) (1976); 20 C.F.R. § 404.1013(b) (1979).
And the dual status technician role enabled Plaintiff to participate in the Civil Service
Retirement System—as opposed to a military retirement system—which now
provides Plaintiff with a civil service pension. So in retirement, Plaintiff receives
two separate pensions from two separate sources: one from the United States Office
of Personnel Management under the Civil Service Retirement System based on his
earnings as a federal civilian employee, and another for his combined military service
(including the National Guard) from an agency of the Department of Defense. But
only Plaintiff’s civil service pension earned from his work as a dual status technician
is at issue in this case.
And it was under this backdrop that when Plaintiff filed an application for
Social Security retirement benefits, the SSA reduced his benefits by applying the
WEP. Specifically, the SSA identified that Plaintiff could receive a windfall from
the usual statutory formula because he participated in both covered and noncovered
employment during his career. And the SSA determined that Plaintiff’s civil service
pension from noncovered employment as a dual status technician triggered the WEP
and reduced his Social Security retirement benefits accordingly.
6
Plaintiff requested reconsideration from the SSA, a determination by an
administrative law judge, and review by the SSA Appeals Council, but had no luck.
He then sought review in federal district court, but the district court agreed with the
SSA. The district court concluded that Plaintiff’s Social Security retirement benefits
were subject to the WEP because his civil service pension was not “based wholly on
service as a member of the uniformed service.” Plaintiff now appeals.
II.
We review questions of statutory interpretation de novo, following the same
standards as the district court. Wedelstedt v. Wiley, 477 F.3d 1160, 1165 (10th Cir.
2007). When we review an agency’s legal determination, that standard is often one
of deference. Id. In this case, two types of deference could apply: Chevron
deference or Skidmore deference. Chevron v. Natural Resources Defense Council,
467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944). Under Chevron
deference, we defer to an agency’s reasonable interpretation of an ambiguous statute
that the agency is responsible for implementing. See Carpio v. Holder, 592 F.3d
1091, 1096 (10th Cir. 2010). Under Skidmore deference, we afford an agency’s
informal interpretation of a statute some measure of “respect according to its
persuasiveness.” United States v. Mead Corp., 533 U.S. 218, 221 (2001). In this
case, the SSA does not ask for Chevron deference but instead argues that we should
afford Skidmore deference to its interpretation.
In either instance, though, we first look “at the statute to determine whether
Congress ‘has spoken directly to the precise question at issue’ in such a way that its
7
intent is clear and unambiguous.” Wedelstedt, 477 F.3d at 1165 (quoting Chevron,
467 U.S. at 842); see also John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav.
Bank, 510 U.S. 86, 109 (1993) (explaining that not even Skidmore deference “is due
to agency interpretations at odds with the plain language of the statute itself”). “If
congressional intent is clear and unambiguous, our inquiry is complete.” Wedelstedt,
477 F.3d at 1165. In that circumstance, we “owe no deference to the agency’s
interpretation and must give effect to the statute as Congress intended it.” Id.
For the reasons discussed below, we conclude the plain language of the
uniformed services exception, in combination with the relevant statutory context,
resolves the question before us. See infra Part III. We therefore do not reach
whether to afford deference to the SSA’s interpretation of the relevant statute because
our inquiry begins and ends with the text. See Wedelstedt, 477 F.3d at 1165.
III.
The single issue in this case is whether Plaintiff earned his dual status
technician pension “based wholly on service as a member of a uniformed service.”
42 U.S.C. § 415(a)(7)(A). Plaintiff contends the dual status technician position is “so
irreducibly military in nature” that the uniformed services exception applies to
insulate his Social Security retirement benefits from the WEP (and therefore from
reduction). By this, Plaintiff means that his civil service pension is based wholly on
his service in the National Guard because, among other things, Congress required
Guard membership for him to hold the dual status technician position. One court of
appeals has agreed with Plaintiff’s position. Petersen v. Astrue, 633 F.3d 633 (8th
8
Cir. 2011) (concluding that a pension payment based on a dual status technician’s
service met the uniformed services exception to the WEP).
The SSA, on the other hand, contends that the dual status technician position is
not wholly military in nature and, therefore, Plaintiff did not earn his pension from
that position based wholly on service as a member of the National Guard. By this,
the SSA means that Plaintiff earned his civil service pension in his capacity as a
federal civilian employee. And Plaintiff’s role as a dual status technician was
distinct from his role as a National Guard member, for which he earned separate pay
and separate retirement benefits. One court of appeals has agreed with the SSA’s
position. Martin v. Soc. Sec. Admin., Comm’r, 903 F.3d 1154 (11th Cir. 2018)
(concluding that a dual status technician’s Social Security retirement benefits were
subject to the WEP because his civil service pension was not “based wholly on
service as a member of the uniformed services”). In coming to our own answer, we
consider the plain language and structure of the uniformed services exception,
context of the full statutory scheme, and characteristics of Plaintiff’s role in our
analysis. See Hamer v. City of Trinidad, 924 F.3d 1093, 1103 (10th Cir. 2019)
(observing that “the meaning of statutory language, plain or not, depends on
context,” so we look to “the specific context in which that language is used” and “the
broader context of the statute as a whole”).
To understand the breadth of the uniformed services exception, we must first
define key terms in the statutory provision. See Perrin v. United States, 444 U.S. 37,
42 (1979) (“A fundamental canon of statutory construction is that, unless otherwise
9
defined, words will be interpreted as taking their ordinary, contemporary, common
meaning.”); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 140 (2012) (“Words are to be given the meaning that
proper grammar and usage would assign them.”). The uniformed services exception
applies to monthly periodic payments “based wholly on service as a member of a
uniformed service.” 42 U.S.C. § 415(a)(7)(A)(ii). We afford “wholly” the ordinary
meaning of “entirely” or “exclusively.” American Heritage Dictionary of the English
Language 1463 (1981) (hereinafter American Heritage).3 As used in the Social
Security Act, the term “service” means employment or work. See
42 U.S.C. § 410(a) (defining covered “employment” as “any service performed” that
meets a specified criteria). We also afford the word “as” in the phrase “service as a
member of a uniformed service” the ordinary meaning of “in the role, capacity, or
function of.” American Heritage at 76. Finally, the statute defines “member of a
uniformed service” to include “any person appointed, enlisted, or inducted in a
component of the Army . . . including a reserve component.” 42 U.S.C. § 410(m).4
3
See Antonin Scalia & Bryan A. Garner, A Note on the Use of Dictionaries,
16 Green Bag 2d 419, 427 (2013) (listing the American Heritage Dictionary of the
English Language as one of “the most useful and authoritative for the English
language generally and for law” among “contemporaneous-usage dictionaries -- those
that reflect meanings current at a given time” (id. at 423)).
4
Elsewhere, Congress clarifies that a “reserve component” includes the “Army
National Guard of the United States.” 38 U.S.C. § 101(27)(F). The SSA does not
dispute—and we agree—that Plaintiff was a “member of a uniformed service” based
on his membership in the National Guard when he concurrently held the dual status
technician position.
10
Next, we look to the grammatical structure of the uniformed services
exception. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989)
(explaining that courts should consider “the grammatical structure of the statute” in
statutory interpretation); see also Scalia & Garner, supra, at 140 (explaining that the
“rules of grammar govern” statutory interpretation “unless they contradict legislative
intent or purpose”). The uniformed services exception contains several prepositions.
See Bryan A. Garner, The Redbook: A Manual on Legal Style ¶ 10.46 (2002)
(explaining that a preposition “is usually positioned before a noun, pronoun, or
nominative phrase or clause and relates its subject to another word in the sentence”).
Most important to our inquiry, Congress used “as” as a preposition, and “member”
serves as the object of that preposition. 42 U.S.C. § 415(a)(7)(A)(ii). Therefore, “as
a member” is a prepositional phrase that describes the type of work that a monthly
periodic payment must be based on to qualify for the uniformed services exception.
See id.; Chicago Manual of Style § 5.173 (16th ed. 2010) (“A prepositional phrase
consists of a preposition, its object, and any words that modify the object.”). The
provision further specifies that qualifying service must be as a member “of a
uniformed service” based on Congress’s use of the preposition “of.” See 42 U.S.C.
§ 415(a)(7)(A)(ii). Likewise, “on” is a preposition that forms the prepositional
phrase “based wholly on service.” See id. “On” also modifies the monthly periodic
payment by describing the underlying basis for a qualifying payment. See id. And
the adverb “wholly” modifies the verb that immediately precedes it—“based”—to
11
further describe the nature of work that qualifies for the uniformed services
exception. See id.
In context, the prepositional phrases establish the full criteria for a payment—
the principal object of the provision—to qualify for the uniformed services exception.
First, the prepositional phrase “based wholly on” restricts a qualifying payment to a
specific reason. See id. And that reason or basis is “service,” specifically service “as
a member” of an identifiable group. See id. Finally, the provision identifies that
group as “a uniformed service.” See id. Together, the prepositional phrases in the
statute demonstrate that only payments Plaintiff receives based exclusively on his
work in the capacity of a uniformed service (National Guard) member fit under the
uniformed services exception. See Martin, 903 F.3d at 1164 (agreeing that “as,” in
context, “appears to limit the uniformed services exception only to payments for
work performed in one’s capacity or role as a member of the uniformed services”).
Put another way, any pension payment that Plaintiff receives based on work outside
of his exclusive capacity as a National Guard member does not qualify for the
uniformed services exception and thus subjects his Social Security retirement
benefits to the WEP. We therefore agree with the Eleventh Circuit that the fact
Plaintiff “was a member of a uniformed service at the same time he performed the
noncovered employment at issue” is insufficient to qualify for the uniformed services
exception. See id.
We reject the Eighth Circuit’s reasoning for several reasons. For one thing,
the statutory text dictates that “the work for which [Plaintiff] now receives civil
12
service [pension] payments—his employment as a dual status technician—must have
been performed in his role as a member of a uniformed service.” Id. (emphasis in
original). But the Eighth Circuit opined that “absent from the [uniformed services]
exception is a requirement that the service be only in a non-civilian or military duty
capacity” and rejected a so-called “military duty requirement.” Petersen, 633 F.3d at
637 (internal quantitation marks omitted). That is not how we read the statute. See
Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004) (relying on “unmistakably clear
language” to interpret a statute even though other courts to consider the subject
provision reached opposite results).
Indeed, the statute requires that a qualifying pension-holder’s service be “as a
member of the uniformed service.” 42 U.S.C. § 415(a)(7)(A)(ii). We interpret that
phrase to mean the service for which a dual status technician receives a pension
payment must have been in the capacity of a National Guard member to qualify for
the uniformed services exception. See Martin, 903 F.3d at 1164. Otherwise, “if
Congress had intended the uniformed services exception to cover any payments made
to someone who had been a member of a uniformed service, it could have
accomplished that objective much more simply by excepting payments ‘to’ a member
of a uniformed service.” Id. Accordingly, we conclude that Plaintiff’s civil service
pension payments cannot qualify for the uniformed services exception to the WEP
13
simply because Plaintiff was in a uniformed service—the National Guard—while he
held the dual status technician position.5
Next, we must determine whether the military characteristics of Plaintiff’s dual
status technician employment made Plaintiff’s service “wholly” as a National Guard
member. To that end, we “look to Congress’s conception of the dual status
technician role, as evidenced by the rest of the statutory scheme.” Id. at 1165. In the
statute describing the dual status technician role, Congress unambiguously states:
“For purposes of this section and any other provision of law, a military technician
(dual status) is a Federal civilian employee . . . .” 10 U.S.C. § 10216(a)(1) (emphasis
added). Elsewhere, Congress reiterated that dual status technicians are “authorized
and accounted for as a separate category of civilian employees.” 10 U.S.C.
§ 10216(a)(2) (emphasis added). And the very title “dual status” reflects a civilian-
military balance of responsibilities. See Martin, 903 F.3d at 1166 (similarly
considering the title of the role). So by repeatedly describing the incumbent as a
“civilian employee,” we observe that Congress expressed its clear intent that a dual
status technician does not work wholly as a member of the military in that position.
10 U.S.C. § 10216(a)(1).
5
Although the parties make arguments based on the statute’s legislative
history, we need not consider the legislative history to interpret the statute in this
case. See Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074, 1019 (10th
Cir. 1998) (observing that we only look “to the legislative history if the statutory
language is unclear”).
14
Additionally, dual status technicians—like all federal technicians—are
appointed in the civil service and receive the same civil service pay and retirement
benefits as other members of the federal civil service. See 5 U.S.C. §§ 2105, 5105,
5332, 5342, 8332(b)(6), 8401(30). Indeed, the Office of Personnel Management pays
Plaintiff his monthly pension payments based on his work as a dual status technician
under the Civil Service Retirement System, not a military pension system.
Conversely, Plaintiff’s National Guard unit is a component of the United States
Army, and Plaintiff receives that pension payment from the Department of Defense.
See 38 U.S.C. § 101(27)(F). Thus, Plaintiff’s position as a dual status technician was
distinct from his National Guard position based on the civil service status,
compensation, and retirement plan he received in the former role.
We recognize that the dual status nature of Plaintiff’s position did include
some military-specific requirements. Namely, the position required him to maintain
membership in the National Guard, hold a specific military grade, and wear the
appropriate military uniform while performing his dual status technician role.
32 U.S.C. § 709(b)(2)–(4). Further, a dual status technician’s failure to maintain his
National Guard membership or required military grade results in the termination of
his dual status technician employment. 32 U.S.C. § 709(f)(1)(A); see also Petersen,
633 F.3d at 635 (acknowledging that a dual status technician occupies a “hybrid” role
with some aspects more consistent with military employment and other aspects more
consistent with traditional civilian employment (citing 10 U.S.C. § 10216(a))).
15
But Plaintiff had many separate responsibilities as a National Guard member
that were detached from his dual status technician role. For instance, Plaintiff had to
meet certain military requirements, such as assembling periodically for “drill and
instruction,” for which he received military pay. 32 U.S.C. § 502; see 37 U.S.C.
§§ 204(a)(2), 206. A dual status technician fulfills these military service
requirements during periods when he is not working as a technician. See Walch v.
Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 291 (5th Cir. 2008) (distinguishing a
dual status technician’s “full-time civilian position with the Guard, a Monday
through Friday job if you will, as a ‘federal technician’” from his “traditional
National Guard position”). In this case, Plaintiff had to fulfill his National Guard
service requirements when he was not working on electronic equipment as a dual
status technician. Indeed, if Plaintiff wanted to perform his National Guard duty at a
time when he would otherwise be at his dual status technician job, he had to request
formal military leave from his dual status technician job for that purpose. See
5 U.S.C. § 6323. Thus, the responsibilities that Plaintiff fulfilled as a National Guard
member separate from his dual status technician responsibilities also demonstrates
that his two positions were distinct.
As the Supreme Court has reasoned, all National Guard members “must keep
three hats in their closets—a civilian hat, a state militia hat, and an army hat—only
one of which is worn at any particular time.” Perpich v. Dep’t of Def., 496 U.S. 334,
348 (1990). Importantly, the uniformed services exception includes the word
“wholly” to indicate that a qualifying pension payment must be entirely or
16
exclusively from military service. 42 U.S.C. § 415(a)(7)(A)(ii). The Eighth Circuit
necessarily overlooked the word “wholly” to conclude that a pension payment based
on a plaintiff’s work in a “hybrid” role qualified for the uniformed services
exception. See Petersen, 633 F.3d at 636–37 (giving decidedly more weight to the
military aspects of the dual status technician role than Congress’s characterization of
the role as “civilian”). Although there is some overlap, the clear distinctions between
Plaintiff’s dual status technician position and his National Guard position indicate
that Plaintiff did not work wholly as a member of the National Guard at his dual
status technician job. See Martin, 903 F.3d at 1164 n.67 (“Just because [the plaintiff]
was a member of the National Guard and also worked for the National Guard in his
dual status technician capacity does not mean that both roles were performed in his
capacity as a member of the Guard.”).
Stated differently, Plaintiff’s federal civilian employment as a dual status
technician was not wholly as a member of the National Guard because Plaintiff
cannot simultaneously act wholly in two distinct capacities. See 10 U.S.C.
§ 10216(a)(1); see also Perpich, 496 U.S. at 348. As the Supreme Court explained,
Plaintiff must take off his National Guard hat to put on his civilian dual status
technician hat and vice versa. See Perpich, 496 U.S. at 348. He cannot wholly wear
both hats simultaneously. See id. Thus, we conclude that Plaintiff’s civil service
17
pension is not “wholly” based on service as a member of a uniformed service, and his
pension payments are therefore subject to the WEP.6
Accordingly, we hold that certain National Guard-specific requirements are
not “sufficient to place dual status technicians within the sweep of the [uniformed
services] exception—especially given the provision’s use of the word ‘wholly.’” See
Martin, 903 F.3d at 1168. Plaintiff’s dual status technician work was at least
partially distinct from the performance of his military duties. See Walch, 533 F.3d at
291. And Plaintiff received separate compensation and separate pensions for his
performance of those distinct roles. So Plaintiff’s civil service pension payments
from his employment as a dual status technician are not based “wholly on service as a
member of a uniformed service.” 42 U.S.C. 415(a)(7)(A). We therefore agree with
6
Plaintiff identifies several cases stemming from Feres v. United States, 340
U.S. 135 (1950), in support of his position that his role was irreducibly military in
nature. See 340 U.S. at 146 (barring certain claims brought by servicemembers for
injuries “incident to military service”); see, e.g., Wood v. United States, 968 F.2d
738, 739 (8th Cir. 1992) (applying the Feres doctrine to bar a National Guard
technician’s challenge to a National’s Guard personnel decision). Feres and its
progeny, however, are irrelevant to this inquiry. Those cases merely establish that
suits based on injuries suffered incident to military service are generally
nonjusticiable, and they do not bear on the interpretation of the uniformed services
exception or Plaintiff’s specific role. Although Plaintiff’s role did not afford him the
same employment rights that most civilians enjoy, such is the nature of a dual status
role. See Martin, 903 F.3d at 1166 (“Even the use of the title ‘dual status’ suggests
that dual status technicians are employed not just in their capacity as members of the
National Guard.”). Limited employment rights relative to other civilian employees
cannot transform a “dual status” role into a wholly military one.
18
the district court and the SSA that Plaintiff’s Social Security retirement benefits are
subject to the WEP.7
AFFIRMED.
7
In deciding that Plaintiff’s pension earned as a dual status technician does not
qualify for the uniformed services exemption to the WEP, we need not address the
SSA’s argument—which it did not raise before the district court—that Plaintiff’s
pension is partially based on a short period during which he worked as a purely
civilian, non-dual status electronic mechanic before he became a dual status
technician. See supra note 2.
We also observe that Plaintiff raises an argument for the first time in his reply
brief based on the Equal Protection Clause of the Fourteenth Amendment. As
Plaintiff concedes, he did not raise an Equal Protection argument to the district court,
nor did he raise the argument in his opening brief. Therefore, Plaintiff has waived
this argument, which we decline to address on appeal. See, e.g., In re: Motor Fuel
Temperature Sales Practices Litig., 872 F.3d 1094, 1113 (10th Cir. 2017) (observing
that “arguments raised for the first time in a reply brief are waived”).
19