19-2766 Linza v. Saul 1 2 United States Court of Appeals
3 For the Second Circuit 4 5 6 August Term 2019 7 8 Argued: June 2, 2020 9 Decided: March 8, 2021 10 11 No. 19-2766 12 13 14 STEPHEN LINZA, 15 Plaintiff-Appellee, 16 v. 17 ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, 18 Defendant-Appellant. 19 20
21 Appeal from the United States District Court 22 for the Western District of New York 23 No. 15-cv-567, Michael A. Telesca, Judge.
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1 Before: SULLIVAN, PARK, and NARDINI, Circuit Judges.
2 Plaintiff-Appellee Stephen Linza, a retired “dual status technician” with the 3 National Guard, appeals the Social Security Administration’s calculation of his 4 Social Security retirement benefits. Linza argues that the civil service pension he 5 received in connection with his employment as a dual status technician – a civilian 6 position that requires concurrent National Guard membership – is not subject to 7 reduction under the Social Security Act’s Windfall Elimination Provision because 8 the pension falls within an exception applicable to payments based wholly on 9 work performed as a member of a uniformed service. The district court (Telesca, 10 J.) granted judgment on the pleadings to Linza, and the agency appealed. Looking 11 to the plain text of the statute and using traditional tools of statutory 12 interpretation, we hold that a civil service pension based on federal civilian 13 employment as a dual status technician does not fall within the uniformed service 14 exception. Accordingly, we REVERSE and REMAND so that the district court 15 may enter a judgment consistent with this opinion. 16 17 REVERSED. 18 19 Andrew O. Miller, Webster Szanyi LLP, Buffalo, 20 New York, for Plaintiff-Appellee Stephen Linza. 21 22 SUSHMA SONI, Attorney, Appellate Staff, Civil 23 Division (James P. Kennedy, Jr., United States 24 Attorney for the Western District of New York, 25 Alisa B. Klein, Attorney, Appellate Staff, Civil 26 Division, on the brief), U.S. Department of Justice, 27 Washington, DC, for Defendant-Appellant United 28 States of America. 29 30 RICHARD J. SULLIVAN, Circuit Judge:
31 This appeal concerns whether Plaintiff-Appellee Stephen Linza’s federal 32 civil service pension from his work as a National Guard “dual status technician”
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1 constitutes a payment based wholly on work performed as a member of a 2 uniformed service under the Social Security Act (the “Act”). The answer to that 3 question determines whether Linza’s Social Security retirement benefits will be 4 reduced, since a provision of the Act lowers retirement benefits for a person (like 5 Linza) who receives a monthly payment based – at least in part – on income that 6 is not subject to Social Security taxes, unless the monthly payment is exclusively 7 for work as a uniformed service member. 8 A dual status technician is “a Federal civilian employee” who is required to 9 maintain membership in the National Guard while “assigned to a civilian position 10 as a technician.” 10 U.S.C. § 10216(a)(1); see also 32 U.S.C. § 709. Focusing on the 11 position’s military characteristics, the district court held that Linza’s pension 12 qualified as “a payment based wholly on service as a member of a uniformed 13 service.” 42 U.S.C. § 415(a)(7)(A)(III). The district court expressly rejected the 14 view that a dual status technician plays a role with bifurcated civilian and military 15 components, finding instead that Linza served only in one position – namely, as a 16 member of the National Guard with special technical capabilities. Having so 17 found, it then determined that all of Linza’s work as a dual status technician
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1 constituted work as a uniformed service member, which in turn meant that his 2 pension was wholly based on such service. 3 Urging reversal, the government argues that the plain meaning of the 4 provision at issue, along with its statutory context, makes clear that a dual status 5 technician’s federal civil service pension is not “based wholly on service as a 6 member of a uniformed service.” We agree with the government and reverse. 7 I. BACKGROUND 8 A. Statutory Scheme 9 The Social Security Act pays individuals a retirement benefit based on a 10 percentage of their pre-retirement income from “covered” employment – i.e., 11 income that was subject to Social Security taxes (“covered income”). See 42 U.S.C. 12 § 415 (describing the calculation of benefits). The Act uses a weighted formula to 13 progressively distribute benefits based on how much covered income an 14 individual has earned over her life. The lower the average covered income an 15 individual has earned, the higher the percentage of her average earnings she will 16 receive in Social Security benefits. See id. § 415(a)(1)(A). As a result, “lower- 17 income workers receive a greater return on their Social Security contributions than 18 higher-income workers.” Babcock v. Comm’r of Soc. Sec., 959 F.3d 210, 215 (6th Cir.
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1 2020), cert. granted, Babcock v. Saul, 2021 WL 769691 (U.S. Mar. 1, 2021) (No. 20-480). 2 But some employment is not covered under the Act. See 42 U.S.C. § 410(a). 3 For example, most federal civil service jobs for employees hired before 1984 are 4 not covered. See id. § 410(a)(5). Noncovered income is exempt from Social Security 5 taxes and not included in the calculation of Social Security benefits. See id. § 415(b). 6 Because only the covered income is used to calculate Social Security benefits, 7 workers with both covered and noncovered employment would tend to have their 8 Social Security benefits calculated as if they had low lifetime earnings. See Rudykoff 9 v. Apfel, 193 F.3d 579, 581 (2d Cir. 1999). Under the standard formula – that is, 10 without any adjustments – workers whose careers span covered and noncovered 11 employment would thus receive a windfall because of the progressively weighted 12 formula, getting a higher return on their Social Security payments relative to 13 workers with only covered employment. 14 Further, noncovered positions often provide non-Social Security retirement 15 pay through pensions or annuity plans, like the pension provided under the Civil 16 Service Retirement System (“CSRS”) for noncovered civil service employees. 17 Thus, under the standard formula, federal employees who receive a civil service 18 pension for noncovered work and a favorably weighted Social Security benefit
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1 could receive total retirement income that would “most likely greatly exceed that 2 of a worker with similar earnings all under social security.” Id. (internal quotation 3 marks omitted) (quoting H.R. Rep. No. 98-25, at 22 (1983), reprinted in 1983 4 U.S.C.C.A.N. 219, 240). 5 In 1983, Congress amended the Act to eliminate this unintended windfall 6 by introducing the Windfall Elimination Provision (“WEP”). 42 U.S.C. § 415(a)(7). 7 The WEP modifies the standard formula for a retiree who receives “a monthly 8 periodic payment” that “is based in whole or in part upon his or her earnings” for 9 noncovered employment. Id. § 415(a)(7)(A). 10 Congress amended the WEP in 1994, adding the “uniformed service 11 exception” at issue here. Id. § 415(a)(7)(A)(III). Under this exception, “a payment 12 based wholly on service as a member of a uniformed service” does not trigger 13 application of the WEP. Id. Section 410(m) of the Act defines a “member of a 14 uniformed service” as “any person appointed, enlisted, or inducted in a 15 component of the Army, Navy, Air Force, Marine Corps, or Coast Guard,” 16 “including a reserve component” such as the Air National Guard. Id. § 410(m); see 17 also 38 U.S.C. § 101(27)(G). By the time Congress passed the amendment, nearly 18 all military pensions were covered and thus exempt from the WEP. See 42
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1 U.S.C. §§ 415(a)(7)(B)(i), 410(l)(1). Only military pensions based on inactive duty 2 between 1956 and 1988 were subject to WEP reduction, and the uniform service 3 exception conformed such pensions with other military retirement pay. 4 B. Facts 5 Linza joined the New York Army National Guard in 1968. In 1977, he 6 enlisted in New York’s Air National Guard and worked as a dual status technician 7 for the Air National Guard from 1977 until April 2008, when he retired. As noted, 8 a dual status technician is defined as a “Federal civilian employee” who “is 9 assigned to a civilian position as a technician” and is required to be a member of 10 the National Guard. 10 U.S.C. § 10216(a); see also 32 U.S.C. § 709(b)(2)–(4) 11 (providing that dual status technicians must be members of the National Guard, 12 hold a specified military grade, and wear the appropriate uniform). A dual status 13 technician’s responsibilities include “the organizing, administering, instructing, or 14 training of the National Guard,” as well as “the maintenance and repair of supplies 15 issued to the National Guard or the armed forces.” 32 U.S.C. § 709(a)(1)–(2); see 16 also 10 U.S.C. § 10216(a)(1)(C). Linza worked as an aircraft mechanic and trainer. 17 As a member of the National Guard, Linza performed fifteen days of active 18 duty a year, in addition to attending weekend drills in uniform once a month,
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1 which was likewise considered active duty. Linza also went on active-duty 2 missions overseas as needed. To go on these missions, Linza would use “leave 3 time [or] vacation time” or other saved time. Joint App’x at 25; see also 5 U.S.C. 4 § 6323 (military leave provisions for federal civilian employees). In addition, 5 Linza was required to maintain physical standards, including by passing a 6 physical fitness test and keeping a military shave and haircut. 7 For his active-duty service and inactive duty training, Linza received 8 military pay, see 37 U.S.C. §§ 204(a)(2) & 206 (military pay provisions), and the 9 parties do not dispute that all his active-duty employment was “covered” under 10 the Social Security Act. Though his inactive duty employment was covered from 11 1988 to 2008, it was not covered from 1968 to 1988. 12 For his work as a dual status technician, Linza received civil service pay 13 from the Office of Personnel Management. Those wages were noncovered and 14 therefore not subject to Social Security taxes. See Appellant’s Br. at 13 (explaining 15 that at the time Linza “entered federal civil service, the term ‘employment’ for 16 purposes of Social Security coverage excluded work performed by federal civilian 17 employees, such as [Linza], who participated in a federal retirement system”).
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1 In retirement, Linza has received a military pension, which is based on his 2 military pay for active and inactive duty, some of which was covered. Linza has 3 also received a civil service annuity – which is separate from his military pension – 4 under the Civil Service Retirement System, based on the noncovered civilian pay 5 he received for his work as a dual status technician. Finally, Linza has received 6 Social Security retirement benefits. 7 C. Procedural History 8 Linza applied for Social Security benefits based on his years of covered 9 military employment. The Social Security Administration (the “SSA”) reduced 10 Linza’s benefits under the WEP due to his receipt of a monthly civil service 11 retirement pension, which was based on his noncovered civil service. The SSA did 12 not reduce his benefits as to his military pension, which was based at least partially 13 on his noncovered military pay for inactive duty before 1977. The parties agree 14 that the military pension falls within the uniformed service exception. 15 Linza challenged the SSA’s application of the WEP to his civil service 16 pension. He sought reconsideration, arguing that he was eligible for the 17 uniformed service exception to the WEP. The SSA affirmed its decision. Linza 18 requested a hearing before an Administrative Law Judge, who concluded the
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1 agency properly applied the WEP. The Appeals Council denied review, rendering 2 the decision final under 42 U.S.C. § 405(g). 3 Linza then sought review in the district court, which granted judgment on 4 the pleadings to Linza, reversing the Commissioner’s decision and remanding to 5 the agency. At that time, the Eighth and Eleventh Circuits had reached different 6 conclusions regarding whether a dual status technician’s civilian pension fell 7 within the uniform service exception. The Eighth Circuit in Petersen v. Astrue, 633 8 F.3d 633 (8th Cir. 2011), held that the exception applied, while the Eleventh Circuit 9 in Martin v. Social Security Administration, Commissioner, 903 F.3d 1154 (11th Cir. 10 2018), held that it did not. 11 Adopting the Eighth Circuit’s reasoning, the district court found the 12 uniformed service exception to be “clear and unambiguous” in Linza’s favor. Joint 13 App’x at 80. Noting, among other things, that dual status technicians “apply[] 14 [their] technical expertise for the service of, and at the direction of, the National 15 Guard,” the district court rejected the notion that Linza worked in a bifurcated 16 capacity. Id. The district court instead determined that dual status technicians 17 “perform their [technician] work as members of the National Guard” in one 18 continuous role with special technical capabilities. Id. at 80–81. Concluding there
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1 was “no dispute that [Linza’s] position as a dual-status technician in the National 2 Guard qualified him as a member of the ‘Uniformed Service,’” the district court 3 held that his pensions were “derived wholly from his ‘Uniformed Service’” – 4 which, in the court’s view, encompassed both his work as a technician and his 5 active and inactive duty assignments. Id. at 81. 6 In August 2019, the Social Security Commissioner filed a timely notice of 7 appeal. Since then, the Third, Sixth, Ninth, and Tenth Circuits have joined the 8 Eleventh Circuit in holding that a civil service pension payment based on work as 9 a dual status technician does not trigger the uniformed services exception. See 10 Newton v. Comm’r Soc. Sec., 983 F.3d 643, 650 (3d Cir. 2020); Larson v. Saul, 967 F.3d 11 914, 926 (9th Cir. 2020), petition for cert. filed, 2020 WL 8571670 (U.S. Dec. 18, 2020) 12 (No. 20-854); Babcock, 959 F.3d at 218; 1 Kientz v. Comm’r, SSA, 954 F.3d 1277, 1285– 13 86 (10th Cir. 2020). We now do the same. 14 II. STANDARD OF REVIEW 15 This Court reviews de novo a district court’s decision awarding judgment on 16 the pleadings. Velarde v. GW GJ, Inc., 914 F.3d 779, 783 (2d Cir. 2019). When 17 reviewing an agency’s legal determination or interpretation of a statute that it is
1 The Supreme Court recently granted certiorari in Babcock to consider the same issue now before this panel. See 2021 WL 769691 (U.S. Mar. 1, 2021) (No. 20-480).
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1 authorized to administer, courts often accord some deference. See Chevron, U.S.A., 2 Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Generally, the amount 3 of deference owed depends on whether the agency’s interpretation carries the 4 force of law. See United States v. Mead Corp., 533 U.S. 218, 227 (2001). 5 In either case, however, courts first consider “whether Congress has directly 6 spoken to the precise question at issue.” Chevron, 467 U.S. at 842. “If the intent of 7 Congress is clear, that is the end of the matter; for the court, as well as the agency, 8 must give effect to the unambiguously expressed intent of Congress.” Id. at 842– 9 43; see also United States v. Am. Soc’y of Composers, Authors & Publishers, 627 F.3d 64, 10 72 (2d Cir. 2010) (“When the language of a statute is unambiguous, judicial inquiry 11 is complete.” (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 290 (2d Cir. 12 2002)); Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 509 13 (2d Cir. 2017) (“Although the Chevron and Skidmore deference standards differ in 14 application, they are similar in one respect[:] we will defer to the agency’s 15 interpretation under [either] standard only when the statutory language at issue 16 is ambiguous.”). 17 “As in all statutory construction cases, we begin with the language of the 18 statute.” Am. Soc’y of Composers, 627 F.3d at 72 (quoting Barhart v. Sigmon Coal Co.,
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1 534 U.S. 438, 450 (2002)). We first “determine whether the language at issue has a 2 plain and unambiguous meaning with regard to the particular dispute in the case.” 3 Id. (quoting Barhart, 534 U.S. at 450). In determining whether Congress has spoken 4 directly on an issue, courts should not examine “a particular statutory provision 5 in isolation,” but rather should read the words in “context and with a view to their 6 place in the overall statutory scheme” and “fit, if possible, all parts into an 7 harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132– 8 33 (2000) (internal quotation marks and citations omitted). Further, “the meaning 9 of one statute may be affected by other[s].” Id. at 133. “In construing 10 provisions . . . in which a general statement of policy is qualified by an exception, 11 we usually read the exception narrowly in order to preserve the primary operation 12 of the provision.” Comm’r v. Clark, 489 U.S. 726, 739 (1989). Thus, as an exception 13 to the general rule establishing the WEP reduction, the uniformed service 14 exception should be construed narrowly. 15 III. DISCUSSION 16 At issue is whether Linza’s pension for his work as a dual status technician 17 is “a payment based wholly on service as a member of a uniformed service.” 42 18 U.S.C. § 415(a)(7)(A)(III). The SSA argues for reversal of the district court’s
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1 decision based on the statutory text and its context, emphasizing that the civilian 2 aspects of the dual status technician position render implausible or contradictory 3 the district court’s conception of the position as merely a specialized form of the 4 National Guard role. Linza, in contrast, urges us to affirm the district court and 5 highlights the military aspects of the dual status technician’s civil service position. 6 We agree with the SSA and reverse. Linza’s civil service pension is not a 7 payment based exclusively on work performed in the role of a uniformed service 8 member. And as we reach this conclusion based on the plain meaning of the 9 statute, we need not even reach considerations of the deference owed to the 10 agency’s interpretation. 11 We start with the text of the uniformed services exception: “a payment 12 based wholly on service as a member of a uniformed service.” Id. As the Supreme 13 Court has explained, “the phrase ‘based on’ [ordinarily] indicates a but-for causal 14 relationship.” Babb v. Wilkie, 140 S. Ct. 1168, 1173 (2020) (quoting Safeco Ins. Co. of 15 America v. Burr, 551 U.S. 47, 63 (2007)); see also Natofsky v. City of New York, 921 F.3d 16 337, 349 (2d Cir. 2019). So, “[u]nder [the] most natural reading” of the statute, a 17 payment is not based on service as a uniformed services member “unless [such
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1 service] was a necessary condition of the” payment. See Safeco Ins. Co., 551 U.S. at 2 63. 3 The exception further clarifies that not only must the payment be “based 4 on” the individual’s service as a member of a uniformed service, it must also be 5 “based wholly on” such service. 42 U.S.C. § 415(a)(7)(A)(III) (emphasis added). 6 The common meaning of “wholly” is “exclusively.” See Babcock, 959 F.3d at 216 7 (“In this context, the word ‘wholly’ plainly means ‘to the full or entire extent’ or 8 ‘to the exclusion of other things.’” (citations omitted)); Kientz, 954 F.3d at 1282 9 (“We afford ‘wholly’ the ordinary meaning of ‘entirely’ or ‘exclusively.’”); see also 10 Am Soc’y of Composers, 627 F.3d at 72 (explaining that for terms not defined in a 11 statute, “statutory words will be interpreted as taking their ordinary, 12 contemporary, common meaning” (quoting United States v. Piervinanzi, 23 F.3d 13 670, 677 (2d Cir. 1994))). The uniformed services exception is therefore clear that 14 it applies to payments for which work in a uniformed service is the only cause. 15 Linza’s pension – undoubtedly a payment – most directly derives from 16 earnings he made in the dual status technician job. To fall within the exception, 17 then, the work he performed must have been conducted exclusively in the capacity 18 of a member of the National Guard. See Kientz, 954 F.3d at 1283 (explaining that
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1 “any pension payment that [p]laintiff receives based on work outside of his 2 exclusive capacity as a National Guard member does not qualify for the uniformed 3 services exception”). 4 Here, although Linza worked for the National Guard, his employment as a 5 dual status technician meant that he was “assigned to a civilian position.” 10 6 U.S.C. § 10216(a)(1)(C); see 5 U.S.C. § 8332(b)(6) (including dual status technicians 7 as those in the civilian service and eligible for the annuity). And, broadly 8 speaking, it was Linza’s designation to that civilian position that made him eligible 9 for his pension, not his National Guard service. See 5 U.S.C. § 8332(b) (tying the 10 civil service retirement annuity to employment “in the civilian service of the 11 Government”); id. § 8332(j)(1) (listing only specific circumstances under which 12 military service can be creditable toward the civilian service-based CSRS annuity); 13 id. § 8331(13) (providing that creditable military service for the CSRS does not 14 include “service in the National Guard except when ordered to active duty in the 15 service of the United States or full-time National Guard duty” and certain 16 requirements are met); see also Perpich v. Dep’t of Def., 496 U.S. 334, 345-–46 (1990) 17 (conceiving of “active duty in the federal service” as distinct from being a 18 “member[] of a separate State Guard unit”).
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1 Linza’s civilian classification, which accompanies the dual status technician 2 position, is a necessary condition to the pension at issue here. See Overton v. N.Y. 3 State Div. of Mil. & Naval Affs., 373 F.3d 83, 85 (2d Cir. 2004) (recognizing that dual 4 status technicians are employed by the federal government “in, at least nominally, 5 a civilian capacity”); 10 U.S.C. § 10216(a)(1) (providing that a military dual status 6 technician is a “civilian employee” for the purposes of “any . . . provision of law”). 7 Consequently, the pension, although based in part on Linza’s service with the 8 National Guard – since the position required his membership in the National 9 Guard – is not wholly based on such service. The payment thus falls outside the 10 uniformed services exception. 11 This conclusion is supported by Congress’s conception of the dual status 12 technician position as distinct from National Guard membership. The process by 13 which one becomes a dual status technician is separate from that by which a 14 person becomes a “member of a uniformed service.” The Act defines the latter as 15 “any person appointed, enlisted, or inducted in” the Air National Guard (or other 16 uniformed services branches). 42 U.S.C. § 410(m); see 38 U.S.C. § 101(27)(G). Those 17 three methods have specific meanings, delineating membership in specific 18 capacities – as an appointed officer, enlisted member, or inductee. See 10 U.S.C.
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1 § 12201; 32 U.S.C. §§ 305–12; see generally Gianatasio v. Whyte, 426 F.2d 908, 910 (2d 2 Cir. 1970) (discussing induction as distinct from appointment or enlistment). 3 Having enlisted in the National Guard, Linza became a member of a uniformed 4 service under the Act’s definition. But Linza was neither “appointed, enlisted, 5 [n]or inducted” into his dual status technician position within the meaning of that 6 provision. Rather, he came into his dual status technician role only through a 7 civilian appointment process not covered by that definition. 8 Linza’s service as a dual status technician therefore was not performed 9 solely, or even primarily, as an enlisted service member. Accord Roper v. Dep’t of 10 Army, 832 F.2d 247, 248 (2d Cir. 1987) (noting that military departments are meant 11 to include only civilian employees, not enlisted personnel). Indeed, we have 12 previously acknowledged that dual status technicians work in different capacities 13 with different duties. See Overton, 373 F.3d at 86, 92 (distinguishing between 14 Overton’s work week responsibilities performed “[i]n his civilian capacity as an 15 aircraft electrician” and the training responsibilities that he performed “[i]n his 16 military capacity as a member of the Guard”). Put differently, Linza could not 17 become a dual status technician simply by gaining or using special technical skills 18 during his enlistment in the National Guard; instead, he entered that job through
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1 civilian appointment, above and beyond the enlistment requirements needed to 2 become a National Guard member. See 5 U.S.C. § 2105(a)(1)(F). In light of the 3 ordinary understanding of what it means to work “as” a particular employee, 4 Appellant’s Br. at 21 (acknowledging that “as” in this context means “in the 5 capacity of” or “in one’s role as”), Linza cannot claim to have worked solely “as” 6 an enlisted member while employed as a dual status technician. 7 Although Linza insists that his technician position was inextricably linked 8 to his membership in the National Guard, the fact remains that Congress defined 9 dual status technicians as “Federal civilian employees” and assigned distinct 10 civilian attributes to the position not usually attendant to service purely as a 11 member of the National Guard. For starters, Linza’s compensation as a dual status 12 technician was subject to the federal civilian pay scale. He received that civilian 13 pay for work performed generally during the work week, receiving separate 14 military pay for his inactive duty drills, which took place on the weekends, and 15 his annual training. See N.Y. Council, Ass’n of Civilian Technicians v. Fed. Lab. Rels. 16 Auth., 757 F.2d 502, 505 (2d Cir. 1985), abrogated on other grounds by F.C.C. v. Fox 17 Television Stations, Inc., 556 U.S. 502 (2009). Linza also received separate military 18 pay when he was called to active duty, and indeed was required to take leave from
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1 his federal civilian position when called to do so. In addition, as a federal civilian 2 employee, Linza was subject to an assortment of employment protections and 3 could join a union, receive workers’ compensation, and earn compensatory time 4 off. See Overton, 373 F.3d at 86 (noting that “[a]s a civilian employee of the federal 5 government, Overton was entitled to certain medical and retirement benefits” and 6 that “a collective bargaining agreement governed his civilian employment” as a 7 dual status technician); N.Y. Council, 757 F.2d at 505 (noting that technicians can 8 “be discharged only for ‘cause’”). It therefore defies common sense to suggest that 9 Linza’s compensation was not even partly based on his work as a “Federal civilian 10 employee.” 10 U.S.C. § 10216(a). Neither the requirements for entitlement to 11 Linza’s civil service pension nor the characteristics of his dual status technician 12 position support the reading that his monthly retirement payments were “based 13 wholly on” his service as a member of a uniformed service and no other ground. 14 IV. CONCLUSION 15 For the foregoing reasons, we REVERSE the decision of the district court 16 and REMAND so that the district court may enter a judgment consistent with this 17 opinion.