### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 2099

L ORRAINE B EELER

, et al.,

Plaintiffs

‐ Appellants

,

v.

A NDREW M. S AUL

, Commissioner of Social Security, et al.,

Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:15

‐ cv

‐ 01481

— Sarah Evans Barker

, Judge

.

____________________

A RGUED M AY 19, 2020

— D ECIDED O CTOBER 5, 2020

____________________

Before E ASTERBROOK

, B RENNAN

, and S T

. E VE

, Circuit Judges

.

B RENNAN

, Circuit Judge

. The plainti ff s in this class action,

dual citizens of the United States and Canada, receive

monthly Canadian pension bene fi ts. They also applied for

and receive U.S. Social Security bene fi ts. But those Social Se

‐ curity bene fi ts were reduced under a statutory “windfall

elimination provision” which decreases workers’ payments

when they split their career between employment requiring2 No. 19

‐ 2099

payment of Social Security taxes (such as in the U.S.) and em

‐ ployment exempt from such taxes (such as in Canada).

The plainti ff s challenge the reductions as unlawful, con

‐ tending the provision does not apply to them. The district

court upheld the application of the provision by the Social Se

‐ curity Administration (“the agency”) to plainti ff s and granted

summary judgment to the agency. Correctly interpreted, the

provision and related statutes apply to these plainti ff s and re

‐

duce their bene fi ts, so we a ffi rm.

I

A. Factual Background

Lorraine Beeler, a dual citizen of Canada and the United

States, previously lived and worked in Canada and receives

monthly retirement bene fi ts from the Canada Pension Plan,

that country’s equivalent to U.S. Social Security. (Virtually all

employees in Canada are enrolled in this government

‐ admin

‐

istered pension plan, or for employees who live in Québec,

the Québec Pension Plan.) Beeler worked in Canada for 19

years and contributed to the Canada Pension Plan through

payroll deductions from her earnings. In 1989 Beeler moved

to the United States. From 1994 until she retired in 2013, she

worked at jobs on which she paid Social Security taxes.

Beeler’s earnings in Canada were not subject to Social Security

taxes, and her earnings in the United States were not subject

to Canada Pension Plan taxes. Beeler has received monthly

Canada Pension Plan bene fi ts since September 2013. The other

class members had work and tax payment histories similar to

Beeler.

In 2013, Beeler applied for Social Security retirement ben

‐

e fi ts based on her years of employment in the United States.No. 19

‐ 2099 3

She was awarded those bene fi ts, but the agency granted her a

reduced amount because she was also entitled to monthly

Canada Pension Plan bene fi ts based on work not covered by

Social Security taxation. This reduction is pursuant to a num

‐

ber of laws, the interpretation of which determines the out

‐

come of this case.

B. Social Security Statutes and Regulations

In dispute is the application of three interrelated statutes.

First : The windfall elimination provision (“the provi

‐

sion”), 42 U.S.C. § 415(a)(7)(A)(ii), states in part that an indi

‐

vidual who becomes eligible for a monthly periodic payment

“which is based in whole or in part upon his or her earnings

for service which did not constitute ‘employment’ as de fi ned

in [42 U.S.C. § 410]

... (hereafter in this paragraph

... referred

to as “noncovered service”)” shall have their bene fi ts recom

‐ puted. The provision excludes in part “a payment by a social

security system of a foreign country based on an agreement

between the United States and such foreign country pursuant

to [42 U.S.C. § 433].” Under the provision the agency reduces

Social Security retirement bene fi ts for U.S. citizens who also

receive monthly periodic payments based on work not subject

to Social Security taxes, including foreign work. See Social Se

‐ curity Admin. pub. no. 05

‐ 10045, Windfall Elimination Provi

‐

sion, h tt ps://www.ssa.gov/pubs/EN

‐ 05

‐ 10045.pdf (Jan. 2020).

Some context for the provision is helpful. Under the Social

Security Act (“the Act”), “workers in the United States are

taxed to support the payment of [S]ocial [S]ecurity bene fi ts to

the retired

... .” Eshel v. Comm’r

, 831 F.3d 512, 514 (D.C. Cir.

2016). A retired worker in the United States is entitled to

Social Security bene fi ts based on the number of calendar4 No. 19

‐ 2099

quarters she worked subject to Social Security contribution re

‐ quirements over the course of her career, provided that she

has accrued a minimum number of quarters of coverage. See

42 U.S.C. §§ 402(a), 414(a). Upon retiring, the worker receives

monthly Social Security retirement bene fi ts equal to a per

‐

centage of her “average indexed monthly earnings,” 42 U.S.C.

§ 415(a)(1), an amount roughly equal to the employee’s aver

‐

age monthly earnings in employment on which she paid So

‐

cial Security taxes over her lifetime.

Originally the Act would have allowed a retired employee

who divided her career between employment on which she

paid Social Security taxes (“covered employment”), and em

‐ ployment exempt from such taxes (“noncovered employ

‐ ment”)—such as jobs in foreign countries for foreign employ

‐

ers—to receive a total retirement income greater than a

worker with similar earnings on which Social Security taxes

were paid: a so

‐ called “windfall.” To address this discrep

‐

ancy, Congress enacted the provision.

Second : “Employment” is de fi ned at 42 U.S.C. § 410(a), in

‐ cluding at subsection (C) as “any service performed

... if it is

service, regardless of where or by whom performed, which is

designated as employment or recognized as equivalent to em

‐ ployment under an agreement entered into under [42 U.S.C.

§ 433]

... .”

Third : Workers who divide their careers between di ff erent

countries, and between covered and noncovered employment

present certain challenges under the Social Security system,

including double taxation, incomplete coverage, or loss of

continuity of coverage. To address these issues, Congress

amended the Act to authorize the President to enter into

international agreements that establish totalizationNo. 19

‐ 2099 5

arrangements, under which the signatory governments coor

‐

dinate bene fi ts under their pension systems. This includes the

grant of retirement bene fi ts to persons who split their careers

among two or more countries. See h tt ps://www.ssa.gov/inter

‐ national/agreements_overview.html (last visited Oct. 5, 2020).

Totalization agreements must contain certain terms, in

‐ cluding that:

 work will result in a period of coverage under either

the Social Security system or the foreign country’s sys

‐

tem “but not under both,” § 433(c)(1)(B); and

 a worker whose periods of coverage are combined (or

“totalized”) to qualify for coverage under the Social Se

‐ curity system will receive a pro

‐ rated Social Security

bene fi t amount based on the proportion of his U.S. pe

‐

riods of coverage, § 433(c)(1)(C).

A payment to an individual from a foreign pension system

based on a totalization agreement under this section is exempt

from the provision. The United States and Canada have been

parties to a totalization agreement since 1984. See Social Secu

‐ rity Admin. pub. no. 05

‐ 10198, Agreement Between the

United States and Canada, h tt ps://www.ssa.gov/interna

‐ tional/Agreement_Pamphlets/canada.html (Aug. 2017). 1

Also pertinent to this case is a regulation implementing

the provision. Under 20 C.F.R. § 404.213, the provision applies

if the retired employee is entitled to a monthly pension “based

1 The United States entered into separate totalization agreements with

Canada and the province of Québec. Those agreements do not differ ma

‐ terially for our purposes, so they are referred to here as “the totalization

agreement.”6 No. 19

‐ 2099

in whole or in part on [her] earnings in employment which

was not covered under Social Security.” The regulation con

‐

tinues:

Noncovered employment includes employment

outside the United States which is not covered

under the United States Social Security system.

Pensions from noncovered employment outside

the United States include both pensions from

social insurance systems that base bene fi ts on

earnings but not on residence or citizenship,

and those from private employers.

20 C.F.R. § 404.213(a)(3).

C. Procedural Background

Relying on the provision and based on plainti ff s’ receipt

of monthly Canadian pension bene fi ts, the agency reduced

the Social Security retirement bene fi ts of Beeler and the other

class members. Beeler requested a hearing before an adminis

‐

trative law judge who found that the agency properly applied

the provision. In 2015, Beeler sought review of the ALJ’s deci

‐

sion by the agency’s Appeals Council but was denied, render

‐ ing the ALJ’s decision fi nal. Before seeking review from the

Appeals Council, though, Beeler had sued the agency in fed

‐

eral district court on behalf of herself and eleven other simi

‐ larly situated Canadian Americans.

The plaintiffs alleged the agency’s application of the pro

‐

vision to them violated its plain language, its implementing

regulation, and the U.S.–Canada totalization agreement.

Plaintiffs sought declaratory relief that the agency’s interpre

‐

tation of the provision, its related regulation, and the totaliza

‐

tion agreement were unlawful. They also sought injunctiveNo. 19

‐ 2099 7

relief preventing the agency from applying the provision

based on receipt of Canada and Québec pension plan benefits,

as well as recalculation of their retirement benefits and back

‐

pay.

The agency filed a motion to dismiss, or in the alternative

for summary judgment, for failure to exhaust administrative

remedies. 2 The district court denied the agency’s motion, con

‐ cluding that exhaustion was futile because the agency ad

‐

hered to its own policies. The court ruled that plaintiffs’

claims were collateral to their individual claims for benefits

on two grounds: their claims constituted a facial challenge to

the agency’s policy to reduce Social Security benefits of dual

citizens, and the agency had already determined the merits of

plaintiffs’ benefit claims based on their individual contribu

‐

tions. Still, the court concluded that plaintiffs would suffer ir

‐ reparable harm if not allowed to proceed, so it certified a class

consisting of dual citizens whose Social Security benefits were

reduced under the provision based on their or their spouses’

receipt of Canada or Québec Pension Plan payments.

On the merits, the district court considered whether the

provision applies given plainti ff s’ Canada or Québec Pension

Plan payments, and if so whether those bene fi ts are speci fi

‐ cally excluded from the provision. The court examined the

Act’s de fi nition of “employment” under § 410(a)(C), but re

‐ jected plainti ff s’ argument that the totalization agreement

designates paid work in either country as covered employ

‐

ment or equivalent to covered employment in both countries.

2 None of the eleven additional plaintiffs had exhausted administra

‐

tive remedies or sued within the 60

‐ day requirement of 42 U.S.C. § 405(g)

at the time Beeler’s complaint was filed.8 No. 19

‐ 2099

“In fact,” the court stated, “the Totalization Agreement lays

down exactly the opposite rule: ‘covered’ in one country ipso

facto means ‘noncovered’ in the other.” The court continued:

“Plainti ff s overlook or misunderstand the statutory command

that ‘employment’ under any totalization agreement

‘shall

... result in a period of coverage’ under either the for

‐ eign or the domestic Social Security system, ‘but not under

both.’” (quoting § 433(c)(B)(i)).

The district court also rejected plainti ff s’ argument that

application of the provision based on their receipt of Canada

or Québec Pension Plan bene fi ts violates the totalization

agreement because Canada does not reciprocally reduce

plainti ff s’ Social Security bene fi ts. To the court, “Article IV [of

the agreement] says that the United States may not discrimi

‐

nate in the payment of Social Security bene fi ts in favor of its

own citizens against Canadians,” and there is no evidence

“that [the agency] applies the [provision] to Canadians

... in

circumstances where it would not also apply the [provision]

to Americans.”

The district court further concluded that plainti ff s’

Canada or Québec Pension Plan bene fi ts do not fall within an

exclusion to the provision because plainti ff s receive them in

‐ dependently and the bene fi ts are not based on the totalization

agreement. So summary judgment was granted to the

agency. 3

3 Because the district court held that the application of the provision

was “lawful as a matter of the unambiguous text” of the Social Security

Act and the totalization agreement, it declined to address whether the

agency’s interpretation of the Act was entitled to deference under Chevron

U.S.A., Inc. v. NRDC

, 467 U.S. 837 (1984), or whether its interpretation ofNo. 19

‐ 2099 9

Plainti ff s appeal the district court’s grant of summary

judgment, which we review de novo, Arwa Chiropractic, P.C.

v. Med

‐ Care Diabetic & Medical Supplies, Inc.

, 961 F.3d 942, 946

(7th Cir. 2020), as we do the questions of statutory interpreta

‐

tion in this case. In re I80 Equipment, LLC

, 938 F.3d 866, 869

(7th Cir. 2019).

II

The parties agree that the statutory and regulatory lan

‐

guage at issue here is plain, but each side argues that plain

language supports their position on whether the provision

applies. They do not debate whether certain statutory terms

have di ff erent meanings. Rather, they read the structure of the

applicable statutes and their interplay di ff erently.

“We interpret statutes as a symmetrical and coherent reg

‐ ulatory scheme, and fit, if possible, all parts in an harmonious

whole.” Owner

‐ Operator Indep. Drivers Assoc., Inc. v. U.S. Dept.

of Transp.

, 840 F.3d 879, 888 (7th Cir. 2016) (internal quotation

marks omitted) (citation omitted). The “whole text” canon of

statutory interpretation also “calls on the judicial interpreter

to consider the entire text, in view of its structure and the

physical and logical relation of its many parts.” A NTONIN

S CALIA & B RYAN A. G ARNER

, R EADING L AW : T HE

I NTERPRETATION OF L EGAL T EXTS 167 (2012). So we approach

this project considering the language and design of the provi

‐

sion as a whole and the statutes it references. See Our Country

the regulation implementing the windfall elimination provision was enti

‐

tled to deference under Auer v. Robbins

, 519 U.S. 452 (1997). We also con

‐

clude that the relevant text is unambiguous, so we need not consider the

question of agency deference.10 No. 19

‐ 2099

Home Enter., Inc. v. Comm’r of Internal Revenue

, 855 F.3d 773,

785 (7th Cir. 2017).

On appeal, plainti ff s o ff er elaborate arguments that can be

summarized into three contentions: (A) the provision does not

include Canada or Québec Pension Plan bene fi ts within its

scope, so plainti ff s’ Social Security bene fi ts should not have

been reduced; (B) the provision’s implementing regulation

exempts Canada or Québec Pension Plan bene fi ts because

they are based on citizenship or residence; and (C) applying

the provision violates the U.S.–Canada totalization agree

‐

ment.

A

First up are the parties’ di ff ering interpretations of the

statutes. Each side o ff ers detailed arguments that are

abridged here.

Plaintiffs admit the provision applies to workers who re

‐

ceive foreign pension payments from foreign governments

for services that do not constitute employment. Plaintiffs read

language in the provision at § 415—“which is based

... upon

... earnings for service which did not constitute employment

as defined in [§ 410]

... (hereafter in this paragraph

... referred

to as “noncovered service”)“—to define the noncovered ser

‐

vice to which the provision applies. In contrast, the provision

should not apply to foreign pension payments arising from

service that is employment, in which they argue they en

‐ gaged.

To ascertain whether their benefits fit within that language

from § 415, plaintiffs look to § 410(a)(C), which defines em

‐ ployment as “service, regardless of where or by whom per

‐

formed, which is designated as employment or recognized asNo. 19

‐ 2099 11

equivalent to employment under an agreement entered into

under [§ 433].” This leads the plaintiffs to the totalization

agreement between the United States and Canada, enacted

under § 433, to resolve whether their services in Canada

would be designated as, or recognized as equivalent to, em

‐ ployment.

From plaintiffs’ review of certain passages in the totaliza

‐

tion agreement—including Article I subsection 6 (recognizing

employment earnings as a “period of coverage”), Article

II(1)(b)(ii) (recognizing the Canada Pension Plan as one of the

“applicable laws” for the totalization agreement), and Article

V (which states “coverage” includes an employed person who

works in either country)—they conclude that their service in

Canada meets the definition of employment. So, they con

‐

tend, the provision does not apply to reduce their Social Se

‐ curity benefits.

The agency reads the provision’s language and related

statutes otherwise. The plaintiffs’ work in Canada was non

‐

covered service on which no Social Security taxes were paid,

argues the agency, so the provision applies to reduce their So

‐

cial Security benefits.

To the agency, the provision’s language at

§ 415(a)(7)(A)(ii) equates “service which did not constitute

‘employment’ as defined in [§ 410]” with noncovered service.

The agency maintains this interpretation is consistent with the

letter of § 410, and courts have routinely construed “employ

‐

ment” under § 410 as consistent with “covered employment,”

that is, work on which Social Security taxes were paid. Plain

‐

tiffs’ work in Canada for Canadian employers on which they

did not pay U.S. Social Security taxes should be viewed as12 No. 19

‐ 2099

noncovered employment under § 410, per the agency, and

therefore the provision applies to reduce plaintiffs’ benefits.

The agency disagrees with the plaintiffs that the totaliza

‐

tion agreement informs the interpretation of these statutes.

The Act’s definitions of “employment,” “coverage,” and “pe

‐

riod of coverage” apply for all purposes, according to the

agency, including application of the provision. To the agency,

if plaintiffs’ work fell within § 410(a)(C), their work would

have been subject to Social Security taxes. That statute encom

‐

passes services in Canada where the two countries agree

those services should be subject to U.S. Social Security taxes,

not services performed in Canada never subject to those taxes.

We conclude that the provision’s text at § 415(a)(7)(A)(ii)

is properly read as matching “service which did not constitute

‘employment’ as de fi ned in section 410” with “noncovered

service” on which Social Security taxes were not paid. The

provision’s reference to “employment” and § 410 is clear and

unambiguous, and its context does not counsel otherwise.

While § 410 does not expressly de fi ne “covered employment,”

case law recognizes that phrase includes service performed

for an American employer either within or outside the United

States, and that “noncovered employment” includes service

not subject to Social Security taxes which provides the retired

employee pension bene fi ts. See, e.g., Stroup v. Barnhart

, 327

F.3d 1258, 1259 (11th Cir. 2003) (Cudahy, J., si tt ing by desig

‐ nation) (noting that Congress enacted the provision to elimi

‐

nate “’double dipping’ that accrued to workers who split their

careers between employment taxed for Social SecurityNo. 19

‐ 2099 13

bene fi ts (‘covered’) and employment exempt from Social Se

‐ curity taxes (‘noncovered’)”). 4

Plainti ff s (or their spouses) were employed by non

‐ Amer

‐

ican employers in Canada or Québec for some period during

their careers. These non

‐ American employers provide plain

‐

ti ff s with monthly Canada or Québec Pension Plan bene fi ts.

Under the plain language of § 433(c)(1)(B), plainti ff s are enti

‐

tled to receive Social Security bene fi ts from the country to

which they paid taxes during their employment. That means

plainti ff s may receive Canada or Québec Pension Plan bene

‐

fi ts based on their time of service to an employer there (which

they do), and from the United States based on their time of

service to an American employer (which they also do). And

because plainti ff s’ work in Canada was subject to Canada or

4 Other federal courts recognize this same “covered” versus “noncov

‐

ered” distinction when interpreting the provision, albeit while construing

a different exception to it, § 415(a)(7)(A)(ii)(III). See Larson v. Saul

, 967 F.3d

914, 918–19 (9th Cir. 2020) (concerning uniformed services and its appli

‐

cation to retired dual

‐ status military technicians who are also federal ci

‐

vilian employees). While the circuits differ in their interpretation of that

exception, all of those courts recognize and respect the “covered” versus

“noncovered” distinction while interpreting the provision. Id

. at 920–21

(reviewing cases from the Sixth, Eighth, Tenth, and Eleventh Circuits). So

we can conclude this distinction is integral to interpretation of the provi

‐

sion.

The dissent argues Stroup and Larson are examples of cases describing

service that is not employment (covered or noncovered), not employment

as noncovered. Dissent at n. 2. That confuses the application of the defini

‐

tion with its recognition. Both decisions (and the numerous cases cited in

Larson

, 967 F.3d at 920–21) recognize, for the provision, the distinction be

‐

tween “covered employment” as service subject to Social Security taxes,

and “noncovered employment” as service exempt from those taxes.14 No. 19

‐ 2099

Québec Pension Plan taxes, but not Social Security taxes, their

work in Canada constitutes noncovered service under the

Act.

Plainti ff s argue their work in Canada falls within the de fi

‐

nition of § 410(a)(C) as “service, regardless of where or by

whom performed, which is designated as employment or rec

‐ ognized as equivalent to employment under an agreement en

‐

tered into under section 433 of this title.” To plainti ff s, the

U.S.–Canada totalization agreement, authorized by § 433, rec

‐ ognizes paid work in both countries as equivalent to employ

‐

ment. Under this expansive view, plainti ff s assert that failure

to recognize their work as employment under the totalization

agreement violates its terms. 5

If plainti ff s’ work fell within § 410(a)(C), then it would

have been subject to Social Security taxes under the totaliza

‐

tion agreement. This subsection allows Social Security taxes

on work performed by foreign citizens in a foreign country,

when the United States and the foreign country have agreed

under the totalization agreement that the work should be sub

‐ ject to taxes only under the U.S. system. So this subsection

would include services performed in Canada when that coun

‐

try and the United States agree those services should be sub

‐ ject to Social Security taxes. This subsection would not apply

to services performed in Canada that were never subject to

Social Security taxes, such as plainti ff s’ work here. If

5 Like statutory interpretation, we “‘ascertain the intent of the parties’

[to an international agreement] by looking to the document’s text and con

‐

text.” Lozano v. Montoya Alvarez

, 572 U.S. 1, 11 (2014) (quoting United States

v. Choctaw Nation

, 179 U.S. 494, 535 (1900)). Totalization agreements estab

‐

lished under section 433 of the Act are interpreted the same way. Eshel

, 831

F.3d at 518.No. 19

‐ 2099 15

plainti ff s’ position was correct—that the totalization agree

‐

ment recognizes paid work in both countries as “employ

‐

ment”—then plainti ff s’ work in Canada would have been

subject to Social Security taxes. It was not, as plainti ff s do not

dispute.

Plainti ff s’ arguments that the totalization agreement sets

the de fi nitions of “employment,” “coverage,” and “period of

coverage” are hysteron proteron : they reverse the logical order.

Neither § 433 nor any sections in the agreement purport to

de fi ne these terms or change their meaning under the Act. The

agreement says nothing about the meaning of “employment”

in § 410, or that paid work in both countries is equivalent to

“covered employment.” The agreement does not change ei

‐

ther country’s de fi nitions of key terms under their respective

retirement systems. The opposite is true: Article I subsection

11 of the agreement states that “[a]ny term not de fi ned in this

Article has the meaning assigned to it in the applicable laws,”

which according to Article II of the agreement are the Social

Security Act and the Canada or Québec Pension Plans.

As an instance supporting their position, plainti ff s con

‐

tend the totalization agreement’s de fi nition of “period of cov

‐ erage” in Article I designates employment or its equivalent to

include what takes place in both Canada and the United

States. But plainti ff s’ reading cannot be reconciled with the

text of § 433, which in se tt ing out totalization agreements pro

‐

vides that employment (or its equivalent) in the Social Secu

‐ rity system or system of a foreign country that is party to a

totalization agreement “shall

... result in a period of16 No. 19

‐ 2099

coverage” under either country’s system, “ but not under both .”

See 42 U.S.C. § 433(c)(1)(B)(i) (emphasis added).

Other examples the plaintiffs offer from the totalization

agreement also do not support the conclusion that their work

in Canada was covered service. The agreement’s definition in

Article I subsection 6 of “period of coverage” relates to cover

‐

age of a spouse or dependent under U.S. law, and for other

articles which govern when and how a worker’s services

should be totalized to establish benefit eligibility in the United

States or Canada. In limited circumstances under this defini

‐

tion a certain period of coverage in one country may count as

coverage in the other, but nothing in the agreement states as

a general rule that a period of coverage in Canada is identical

to or equivalent with a period of coverage in the United

States.

The same is true with Article II(1)(b)(ii) of the totalization

agreement, which recognizes the Canada Pension Plan as one

of the “applicable laws” for the agreement, but which does

not rede fi ne “employment” or “coverage.” Just so with Arti

‐

cle V of the agreement, which focuses on the place of employ

‐

ment to determine which country’s laws govern: “Except as

otherwise provided

... an employed person who works in the

territory of one of the Contracting States shall

... be subject to

the laws of only that Contracting State.” This de fi nition is spe

‐

ci fi c to the agreement’s explanation of when and where an

employee’s services should be totalized to establish bene fi t el

‐ igibility. Based on that section, an employee working in Can

‐

ada accrues coverage subject to Canada’s pension laws, andNo. 19

‐ 2099 17

an employee working in the United States accrues coverage

subject to the Act and its implementing regulation

.

None of these sections in the totalization agreement estab

‐

lish that “employment” includes plainti ff s’ work in Canada.

Each is for a limited purpose under the agreement, not for all

purposes under the Act.

The totalization agreement is intended to aid in the coop

‐

eration between two countries who have their own laws and

pension systems. It helps coordinate between the Social Secu

‐ rity system and the Canada Pension Plan at points of intersec

‐

tion—for example, to avoid problems with dual taxation, or

with continuity of bene fi ts—but not for all purposes. The

agreement does not work backward to alter the meaning of

the terms in the Act, nor does it upend the fundamental de fi

‐

nition of “covered employment” recognized by so many

courts that have interpreted the provision, which in turn

would a ff ect whether the provision applies to plainti ff s.

Plainti ff s maintain they do not claim entitlement to Social

Security retirement bene fi ts based on their Canadian employ

‐

ment. But if so long as a totalization agreement is in place and

work performed in a foreign country constitutes “employ

‐

ment” under the Act, then workers can claim bene fi ts from a

sovereign that did not tax them to fund those bene fi ts. The

district court correctly reasoned that such a result would fol

‐

low if a totalization agreement—for all purposes—made

Canadian employment subject to Canadian pension taxes

equivalent to U.S. employment subject to Social Security

taxes.

Under plainti ff s’ reading of the statutes and totalization

agreement, all periods of coverage under the foreign pension18 No. 19

‐ 2099

system would translate into periods of coverage under the

Act. Plainti ff s say their interpretation does not create a wind

‐

fall. But if not a windfall, plainti ff s’ position would at least

give them a signi fi cant advantage by granting bene fi ts for em

‐ ployment on which Social Security taxes were not paid. That

would also erase the distinction between work performed in

a foreign country and work in the United States. Then there

would be no need to totalize—to combine periods of coverage

to establish a workers’ eligibility for bene fi ts, or to prevent

double taxation—the very reason for a totalization

agreement. Such an interpretation would also violate the pre

‐ sumption against ine ff ectiveness: a textually permissible

interpretation that furthers rather than obstructs a text’s pur

‐

pose should be favored. See S CALIA & G ARNER

, R EADING L AW

63–65.

Also under plaintiffs’ reading, if “employment” does not

mean “covered employment,” it would mean any compen

‐

sated services. Separation of powers problems would then

arise, as the totalization agreement would be setting the Act’s

definitions for purposes of awarding benefits, with the Presi

‐

dent through an international agreement obligating the U.S.

Treasury, notwithstanding Congress setting those definitions

under the Act. In effect, the U.S. would be setting its Social

Security payments based on another country’s definition of

“employment”—a step too far.

Our dissenting colleague’s interpretation suffers from the

same failings as the plaintiffs’, reasoning backward from the

totalization agreement to determine applicability of the pro

‐

vision. Maintaining there is a distinction between “coverage”

and “employment,” the dissent reads the agreement as “allo

‐ cating” or “assigning coverage of work that is alreadyNo. 19

‐ 2099 19

predesignated as employment by the local laws of either coun

‐ try.” Dissent at 8. Borrowing Canada’s definition of “employ

‐

ment,” the dissent reads § 410(a)(C) as recognizing a hypo

‐

thetical detached worker’s services as qualifying as employ

‐

ment under the U.S. Social Security Act. Id. at 8. So according

to the dissent, the detached worker’s (and Beeler’s) employ

‐

ment is “not ‘noncovered service’ that triggers the Provision.”

Id

. at 11. 6

The dissent’s construction is awkward for a number of

reasons. Rather than “coverage” and “employment” as sepa

‐

rate concepts, the statutes under interpretation do address the

relation between them. The provision at § 415 references § 410

(which is titled and defines “employment”) as part of its def

‐

inition of “noncovered service.” And § 433(a)(1)(B)(i) speaks

to when “employment

... shall

... result in a period of cover

‐

age

... .” Even more, § 433 expressly states that coverage can

be under the Act or the laws of the foreign country “but not

under both.” To say the agreement defines coverage but the

Act does not is to ignore this federal statutory requirement

which speaks directly to coverage. The same problems dis

‐

cussed above with the plaintiffs’ interpretation afflict the dis

‐

sent’s reading. Contradictions arise, such as the statement

that “’noncovered service,’

... does not mean service that is

not covered.” Dissent at 2. At bottom, such a reading is cer

‐ tainly not the symmetrical, coherent, and harmonious whole

6 Unlike the hypothetical detached worker described in the dissent,

who is not a U.S. citizen, Beeler has dual American and Canadian citizen

‐ ship.20 No. 19

‐ 2099

which is the goal when interpreting statutes. Owner

‐ Operator

Indep. Drivers Assoc.

, 840 F.3d at 888.

Our textual analysis controls, as few cases involve the ap

‐ plication of the provision based on foreign pension pay

‐

ments. 7 Plainti ff s cite two decisions, Eshel v. Comm’r of Internal

Revenue

, 831 F.3d 512 (D.C. Cir. 2016), and Erlich v. United

States

, 104 Fed. Cl. 12 (Ct. Cl. 2012), as cases that recognize the

bilateral nature of totalization agreements under which em

‐ ployment in one country is equivalent to employment in the

other. But these decisions are distinguishable from the facts

here. Neither involves the provision. They also conclude that

under a totalization agreement the purposes for which em

‐ ployment in one country is treated as employment in another

are limited, like avoiding dual taxation or calculating bene fi t

eligibility, and not for all purposes. Eshel

, 831 F.3d at 514;

Erlich

, 104 Fed. Ct. at 17–18.

In summary, the provision modifies the standard Social

Security benefit formula for an individual who also receives a

monthly periodic payment based on earnings for service

which did not constitute employment as defined in § 410, re

‐

ferred to as noncovered service. See § 415(a)(7)(A). The

7 In unpublished orders involving similar circumstances, this court

has a ffi rmed the agency’s reliance on the provision to reduce a claimant’s

Social Security retirement bene fi ts. Kamyk v. Berryhill

, 695 F. App’x 947,

947–49 (7th Cir. 2017) (a ffi rming agency’s decision relying on provision’s

plain language to reduce a dual citizen’s Social Security bene fi ts due to

her receipt of Polish retirement bene fi ts); Hawrelak v. Colvin

, 667 F. App’x

161, 162–63 (7th Cir. 2016) (a ffi rming agency’s decision to reduce a dual

citizen’s Social Security bene fi ts due to her receipt of Canada Pension Plan

bene fi ts).No. 19

‐ 2099 21

totalization agreement does not designate work in Canada on

which no Social Security taxes are paid as employment or

equivalent to employment. Because plaintiffs’ work in Can

‐

ada is not considered “employment” under § 410, the provi

‐

sion of § 415 applies and reduces plaintiffs’ Social Security

benefits.

Finally on this point, in support of their positions the par

‐

ties o ff er various arguments from the legislative history. In in

‐ terpreting statutory language, the court adopts an agency’s

interpretation if it is “based on a permissible construction of

the Act.” Barnhart v. Walton

, 535 U.S. 212, 218 (2002). The

agency’s interpretation here meets that standard. When text

is clear and unambiguous, “the court must give it e ff ect and

should not look to extrinsic aids for construction.” In re Rob

‐

inson

, 811 F.3d 267, 269 (7th Cir. 2019). Because the plain

meaning of these statutes resolve this question, we need not

look beyond the text to consult legislative history. See Conroy

v. Anisko ff

, 507 U.S. 511 (1993); see generally United States v.

Rodriguez

, 460 F. Supp. 2d 902, 909–10 (S.D. Ind. 2006) (noting

courts will look beyond text of a statute only when its mean

‐ ing is not plain, statutory context or structure as a whole re

‐

veals ambiguity, or giving e ff ect to plain meaning will lead to

illogical and absurd results).

B

Plainti ff s also argue that the regulation implementing the

provision, 20 C.F.R. § 404.213, exempts Canada or Québec

monthly pension bene fi ts because they are based on citizen

‐ ship or residence. Under the regulation, the provision applies

if the retired employee is entitled to a monthly pension “based

in whole or in part on [her] earnings in employment which22 No. 19

‐ 2099

was not covered under Social Security.” The regulation goes

on:

Noncovered employment includes employment

outside the United States which is not covered

under the United States Social Security system.

Pensions from noncovered employment outside

the United States include both pensions from so

‐

cial insurance systems that base bene fi ts on earnings

but not on residence or citizenship

, and those from

private employers

.

20 C.F.R. § 404.213(a)(3) (emphasis added).

“A statute and its implementing regulations should be

read as a whole and, where possible, a ff orded a harmonious

interpretation.” Carmichael v. The Payment Center, Inc.

, 336 F.3d

636, 640 (7th Cir. 2003). The le tt er of this regulation is con

‐

sistent with the clear and unambiguous text of the provision,

which states it applies to payments based on “noncovered ser

‐

vice.” 8 Also, the provision does not draw any distinctions

based on where the noncovered service was performed.

Plainti ff s contend that the agency’s application of the pro

‐

vision to their Social Security bene fi ts violates the sentence of

the regulation emphasized above. To plainti ff s, the Canada or

Québec monthly pension bene fi ts are based on both earnings

and residence or citizenship, so the provision should not ap

‐ ply to them.

8 In contrast, our dissenting colleague interprets these statutes differ

‐ ently while agreeing with our interpretation of this regulation. Dissent at

n.1.No. 19

‐ 2099 23

But plainti ff s stretch when they argue that the Canada or

Québec Pension Plans are residence

‐ or citizenship

‐ based.

None of the plainti ff s currently reside in Canada, and they

continue to receive Canada or Québec monthly pension ben

‐

e fi ts, which undercuts plainti ff s’ assertion. And Canada has

the Old Age Security program which is residence

‐ based. It

provides payments to seniors funded out of general tax reve

‐

nues. Old Age Security: Overview

, h tt ps://www.can

‐

ada.ca/en/services/bene fi ts/publicpensions/cpp/old

‐ age

‐ se

‐ curity.html (last visited Oct. 5, 2020). This program pays ben

‐

e fi ts regardless of employment history, unlike the Canada or

Québec monthly pension bene fi ts which depend on an

individual’s employment history. The agency’s operations

manual also re fl ects this distinction. See Social Security Ad

‐

ministration Program Operations Manual System, GN

00307.290.C.3; see also id. C.6 (noting Canada has a two

‐ tiered

social security system with payments under the Old Age Se

‐ curity program as residence

‐ based to which the provision is

not applied, in contrast with the Canada or Québec Pension

Plans which are earnings

‐ based and to which the provision is

applied).

To support their interpretation of the regulation, plainti ff s

cite Rabanal v. Colvin

, 987 F. Supp. 2d 1106 (D. Colo. 2013), in

which a district court reversed an ALJ’s fi nding that the plain

‐

ti ff ’s Spanish pension bene fi ts were subject to reduction under

the provision. Id

. at 1108. Plainti ff s point to a statement in

Rabanal that 20 C.F.R. § 404.213(a)(3) precludes application of

the provision to payments from foreign pension systems that

base bene fi ts in part on residence or citizenship, “regardless

of whether [the pension] is also based on earnings. Id. at 1112.

To plainti ff s, this statement shows that the agency misinter

‐ preted and misapplied the provision’s implementing24 No. 19

‐ 2099

regulation, as here plainti ff s claim their bene fi ts are based on

citizenship.

But Rabanal is not persuasive. The statement from that case

on which plainti ff s rely is dictum; that case’s holding was that

the provision applied only to noncovered bene fi ts on “earn

‐ ings” and that the agency erred by equating “earnings” with

“work.” Id

. at 1112. No court has adopted Rabanal ’s dictum on

this point, and we also decline to do so because it runs con

‐

trary to the plain text of the provision and the totalization

agreement. Even more, in Rabanal

, the agency had conceded

that the claimant’s Spanish pension bene fi ts were based on his

citizenship status. Id

. at 1112. The agency has made no such

concession here, and points to decades of interpretation to the

contrary.

We are bound by the clear text of the Act and its imple

‐ menting regulation. The regulation cannot be read to mean

that only pensions based exclusively on earnings will be sub

‐ ject to the provision. Such an interpretation would be contrary

to the provision’s plain language, which would apply when a

claimant also receives a pension payment “based

... in part”

on factors other than noncovered service. 42 U.S.C.

§ 415(a)(7)(A)(ii). The agency’s interpretations of the provi

‐

sion and its implementing regulation were permissible, as

was its application of the provision to reduce plainti ff s’ Social

Security bene fi ts.

C

According to plainti ff s the agency’s reduction of their So

‐

cial Security bene fi ts also violates the totalization agreement

between the United States and Canada. They contend the pro

‐

vision should not apply because their Canada or QuébecNo. 19

‐ 2099 25

Pension Plan bene fi ts are “payment[s] by a Social Security

system of a foreign country based on an agreement concluded

between the United States and such foreign country pursuant

to section 433 of this title ...” § 415(a)(7)(A)(II) (emphasis

added). Such bene fi ts are exempt from application of the pro

‐

vision as payments made pursuant to the countries’ express

wishes.

But plaintiffs’ foreign pension benefits are based on their

employment in Canada, not on the totalization agreement.

There is no dispute that plaintiffs are entitled to those bene

‐

fits, regardless of the agreement. And even if there was no

agreement, plaintiffs would still receive their Canada or

Québec Pension Plan benefits because those benefits are inde

‐ pendent of the agreement and firmly rooted in the Canada or

Québec Pension Plan systems. Those payments do not rely on

the existence of the totalization agreement for their validity.

Plaintiffs cannot have it both ways. Either their Canada or

Québec Pension Plan benefits are merely a creation of the

agreement between the United States and Canada (a conclu

‐

sion that would have significant consequences moving for

‐ ward), or they are established based on their years of service

to their foreign employers, independent of any international

agreements. We conclude they are the latter, and therefore

neither “based on” the totalization agreement nor exempt

from application of the provision. Because plaintiffs’ Canada

or Québec Pension Plan benefits are not based on the agree

‐

ment, plaintiffs’ employment in Canada does not qualify as

covered employment under the Act, and the agency correctly

applied the provision to the Social Security benefits.

Plainti ff s also argue that applying the provision violates

the totalization agreement because Canada does not26 No. 19

‐ 2099

reciprocally reduce plainti ff s’ Canada or Québec Pension Plan

bene fi ts based on their receipt of Social Security bene fi ts. Ar

‐

ticle IV of the totalization agreement provides that nationals

“who reside in the territory of either Contracting State shall,

in the application of the laws of a Contracting State, receive

equal treatment, with respect to the payment of bene fi ts, with

the nationals of that Contracting State.” Article IV requires

that the United States give equal treatment to American and

Canadian citizens living in the United States or Canada when

paying Social Security bene fi ts to quali fi ed individuals. That

section of the agreement prohibits the United States from dis

‐ criminating in the payment of Social Security bene fi ts in favor

of its own citizens against Canadians or certain other non

‐

Americans. But plainti ff s have presented no evidence that the

agency applies the provision to Canadians when it would not

also apply the provision to Americans. Without more, this as

‐

sertion does not prevail.

Equal treatment under Article IV of the totalization agree

‐

ment requires that the United States treat its citizens and

Canadian citizens the same in the payment of bene fi ts. The

United States does that. That does not mean the United States

cannot apply the provision unless Canada has a windfall pro

‐

vision of its own. That is not why countries enter into a total

‐

ization agreement. There is no requirement that countries

have the same laws. Rather, Article IV prevents one country

to the agreement from discriminating against the citizens of

another country when bene fi ts are awarded.

III

The agency correctly ruled that plainti ff s’ Canadian em

‐ ployment was noncovered under the Social Security Act, and

thus that the provision applied to reduce their Social SecurityNo. 19

‐ 2099 27

bene fi ts. The district court properly granted summary judg

‐

ment to the agency, so we A FFIRM

.28 No. 19

‐ 2099

S T

. E VE

, Circuit Judge

, dissenting. The Social Security Com

‐

missioner and the majority hang their hat on a simple propo

‐

sition: when the Social Security Act (the Act) refers to employ

‐

ment, it means “covered employment.” Lorraine Beeler con

‐

tends that her work in Canada was “employment,” as de fi ned

in 42 U.S.C. § 410(a), but she concedes that it was neither cov

‐

ered by the Act nor taxed by the United States. The majority

and the Commissioner dismiss her argument as essentially a

contradiction, but nothing in the text of § 410(a) de fi nes em

‐ ployment in terms of coverage or taxation. Instead the Act

does the opposite, de fi ning coverage and taxation in terms of

employment. Because the majority’s analysis rests on an un

‐ supported premise to exclude Beeler’s work from the de fi ni

‐

tion of employment, I respectfully dissent.

The facts are straightforward. Between 1970 and 1989,

Beeler was a Canadian citizen who worked in Canada and ac

‐

crued bene fi ts under the Canada Pension Plan. She then

moved to the United States, where she eventually became a

U.S. citizen. While in the United States, she worked and ob

‐

tained su ffi cient quarters of coverage under the Act so that

she became entitled to Social Security bene fi ts based solely on

her work in the United States. In other words, she did not

need to “totalize” her Canadian and U.S. contributions under

the Canadian

‐ American Totalization Agreement (the Agree

‐

ment). When she retired and sought her Social Security bene

‐

fi ts, though, she received less money than she expected. The

Social Security Administration had reduced her bene fi ts un

‐

der the Windfall Elimination Provision (the Provision), 42

U.S.C. § 415(a)(7)(A), because her work that contributed to the

Canada Pension Plan was not covered by the Act.No. 19

‐ 2099 29

The dispute in this appeal centers on the relationship be

‐

tween two closely related concepts in Social Security law: em

‐ ployment and coverage. Beeler admits that the Act did not

cover her work in Canada and that she did not pay U.S. taxes

on wages earned through that work, but she argues that this

work was nevertheless “employment” within the meaning of

the Act. The Commissioner contends, and the majority agrees,

that employment means covered employment. They then

work backwards from their proof of the indisputable (and un

‐ disputed) fact that Beeler’s work in Canada was not covered

or taxed to reason it must, therefore, not have been employ

‐

ment. If these two concepts are not indelibly linked, though,

this reasoning crumbles. None of the majority’s concerns

would result from Beeler’s work being employment but not

covered. No one would receive bene fi ts without paying taxes

and totalization agreements would not be made pointless be

‐

cause coverage—not employment—determines bene fi ts, 42

U.S.C. § 415(a), and totalization agreements combine periods

of coverage not periods of employment. Id. § 433(c)(1)(A).

The Provision is di ff erent. Although its bene fi t

‐ reduction

formula applies to those who receive payments based on

earnings from “noncovered service,” that phrase does not

mean service that is not covered. Instead, Congress explicitly

de fi ned noncovered service to mean service that “did not con

‐

stitute ‘ employment .’” 42 U.S.C. § 415(a)(7)(A) (emphasis

added). So, if Beeler is correct that her service in Canada was

employment, even if not covered, then her Canada Pension

Plan bene fi ts do not trigger the Provision by its plain terms. 1

1 The regulations implementing the Provision, though, do apply it to

“[n]oncovered employment,” which includes “employment outside the30 No. 19

‐ 2099

When the Commissioner and majority respond that em

‐ ployment means covered employment, they gloss over how

the Act really works. 42 U.S.C. § 410 provides a speci fi c de fi

‐

nition of employment. Then, 42 U.S.C. § 409 de fi nes wages to

mean “remuneration

... for employment.” Finally, anyone

who earns a certain amount of wages in a year obtains a quar

‐

ter of coverage under 42 U.S.C. § 413. (An identical logic plays

out under the Federal Insurance Contributions Act (FICA) to

collect taxes to pay for social security bene fi ts. See I.R.C.

§§ 3101, 3121(a)–(b).) This is a causal chain. Employment

leads to wages leads to coverage and taxation. It is not, as the

majority concludes, coverage and taxation that make service

qualify as employment, such that anything that is not taxed is

not employment. 2

United States which is not covered.” 20 C.F.R. § 404.213(a)(3). This ex

‐

cludes Beeler even under her argument. (The majority rightly rejects her

contrary interpretation of this regulation.) The Commissioner, though,

does not argue that any part of the Provision, let alone its clear de fi nition

of “noncovered service” is ambiguous such that we should defer to this

regulatory shift in language. All the regulation does, then, is concede that

“noncovered employment” exists, undermining the supposed contradic

‐

tion Beeler falls into by insisting her work was employment but not cov

‐

ered. Indeed, if the majority is right that employment means only covered

employment, it is the agency that contradicts itself with regulations ad

‐ dressing “noncovered covered employment.”

2 The majority’s examples of cases referring to employment as “non

‐

covered” are really describing service that is not employment, covered or

otherwise. See Stroup v. Barnhart

, 327 F.3d 1258, 1259 (11th Cir. 2003) (state

police o ffi cer, excluded from employment de fi nition under 42 U.S.C.

§ 410(a)(7)); Larson v. Saul

, 967 F.3d 914, 920–21 (9th Cir. 2020) (collecting

cases about inactive military duty not included in employment de fi nition

under § 410(l)(1)(B)).No. 19

‐ 2099 31

The majority and the Commissioner reach their conclusion

by emphasizing that work, that like Beeler’s is covered by the

Canada Pension Plan, cannot be covered by the Act. Beeler,

though, does not argue otherwise. She readily admits that this

result follows explicitly from the text of the Act:

[E]mployment or self

‐ employment, or any service

which is recognized as equivalent to employment or

self

‐ employment under this subchapter or the social

security system of a foreign country which is a party to

such agreement, shall, on or after the e ff ective date of

such agreement, result in a period of coverage under

the system established under this subchapter or under

the system established under the laws of such foreign

country, but not under both.

42 U.S.C. § 433(c)(1)(B)(i). (The same thing again happens on

the tax side, as wages are exempt from FICA taxes if coverage

is assigned to another country under a totalization agreement.

See I.R.C. § 3101(c).) This rule means service can fi nish the

causal chain and lead to coverage in only one system, but

nothing in the text of these sections prevents services from be

‐ ing employment under both systems.

The Agreement’s implementation of § 433(c)(1)(B)(i), titled

“Provisions on Coverage ,” demonstrates the distinction be

‐

tween coverage and employment. Agreement with Respect to

Social Security, Can.

‐ U.S., 35 U.S.T. 3405, 3408

h tt ps://www.ssa.gov/international/Agreement_Texts/can

‐

ada.html (emphasis added). This part of the Agreement sets

out a series of choice

‐ of

‐ law provisions, starting with a default

rule: “Except as otherwise provided in this Article, an em

‐ ployed person who works in the territory of one of the Con

‐ tracting States shall, in respect of that work, be subject to the32 No. 19

‐ 2099

laws of only that Contracting State.” Id. Art. V, § 1 (emphasis

added). Then the Article provides several exceptions. Arti

‐

cle V, § 2, for example, addresses what is called a detached

worker. An “employed person” who works in one country,

covered by that country’s laws, and who is temporarily as

‐ signed to work in the territory of the second country main

‐

tains his coverage in the fi rst country. Id. Art. V, § 2. 3

The Agreement thus works in two sequential steps—the

employment step, governed independently by each country’s

local laws, and the coverage step, governed jointly by the

Agreement itself in compliance with § 433(c)(1)(B). Both § 1

and § 2 use the phrase “employed person” to identify those

whose coverage is assigned to one country or the other. Nei

‐

ther provision de fi nes what “employed” means, though, and

neither does any other part of the Agreement. As an unde

‐

fi ned term, then, it “has the meaning assigned to it in the ap

‐ plicable laws.” Id. Art. I, § 11. Applicable laws, in turn, mean

speci fi ed portions of the Act and the Internal Revenue Code

for the United States, and for Canada, the Canada Pension

Plan and Old Age Security Act. Id. Art. II, § 1.

That brings us to the meat of this appeal—the Act’s de fi ni

‐

tion of “employment.” Before 1983, just two de fi nitions ex

‐

isted, both of which still apply today. De fi nition (A) is “service

... by an employee for the person employing him, irrespective

of the citizenship or residence of either, (i) within the United

States, or (ii) on or in connection with an American vessel or

American aircraft ....” 42 U.S.C. § 410(a). De fi nition (B) is “ser

‐

vice

... outside the United States by a citizen or resident of the

3 Like the majority, I refer only to the Canadian Agreement because

the Québécois Agreement is materially identical.No. 19

‐ 2099 33

United States as an employee (i) of an American employer

...

or (ii) of a foreign a ffi liate

... of an American employer ....” Id.

Losing some of the nuance, the two de fi nitions simply mean

that service quali fi es as employment if it was performed ei

‐

ther (A) in the United States, regardless of the parties’ citizen

‐ ship or residence or (B) by a U.S. citizen or resident for an

American employer, regardless of location.

The problem Congress noticed in 1983 was that these two

de fi nitions omi tt ed some of those who the United States had

agreed to cover under a totalization agreement. See H.R. Rep.

No. 98

‐ 25 at 75, as reprinted in 1983 U.S.C.C.A.N. 219, 294. As

an illustration, take a hypothetical detached worker in Can

‐

ada who is not a U.S. citizen or resident or who is not working

for an American employer. While working within the United

States, he accrues Social Security coverage because his service

quali fi es as employment under de fi nition (A), regardless of

his or his employer’s citizenship. His company then tempo

‐ rarily assigns him to work in Canada, where he resides for

that period. This temporary placement no longer fi ts into def

‐

inition (A) because his work is no longer “within the United

States” and de fi nition (B) cannot apply if he is neither an

American citizen or resident nor working for an American

employer. If his service is not employment, he cannot start the

causal chain outlined above and accrue quarters of coverage

under the Act. On the Canadian side, his work is employ

‐

ment, but he is not covered by the Canada Pension Plan. Arti

‐

cle V, § 2 says that a detached worker is subject to the laws of34 No. 19

‐ 2099

only the country where he was originally employed. He is

locked out on both sides of the border. 4

Beeler and the Commissioner agree that Congress solved

the problem of this detached worker by adding de fi nition (C)

to § 410. Under this third de fi nition, employment also means

“service, regardless of where or by whom performed, which

is designated as employment or recognized as equivalent to

employment under an agreement entered into under section

433 of this title.” 42 U.S.C. § 410(a). Beeler contends that her

work in Canada quali fi es as employment under this de fi ni

‐

tion, and at least in light of the arguments presented here, she

appears to be right.

What is important for Beeler is how de fi nition (C) fi xed the

problem for the detached worker. One might assume from the

majority’s opinion that the challenge in this case is how to in

‐

terpret de fi nition (C) so that it includes Beeler. But that is

looking at only half the picture. It would be easy to exclude

Beeler just by saying that de fi nition (C) means nothing at all.

As the Commissioner notes, the Canadian

‐ American Agree

‐

ment does not designate anything as employment, it merely

assigns coverage, so perhaps the statute is just meaningless

(at least as applied to this one agreement). We cannot, how

‐

ever, dismiss de fi nition (C) because everyone agrees that the

detached workers have used it to receive coverage for the last

37 years. The de fi nition must mean something, so the ques

‐

tion the majority and the Commissioner really must answer is

4 In reality, Article V has failsafe provisions to prevent a total lockout,

but it does so by reassigning this hypothetical worker’s coverage to Can

‐

ada, contrary to the signatories’ intent. See Agreement, Art. V, §§ 8–9.No. 19

‐ 2099 35

how de fi nition (C) includes the detached worker but excludes

Beeler.

Nothing in the text of § 410(a) distinguishes between them.

Take a detached worker identical to Beeler in nearly every

way: both Canadian citizens, residing in Canada, working in

Canada for a Canadian employer (indeed it could be the same

employer). All that separates the two is that Beeler started her

work in Canada, and the detached worker started in the U.S.

o ffi ce before his employer temporarily transferred him to the

Canadian o ffi ce. That distinction is all the di ff erence for Arti

‐

cle V’s provisions on coverage

, but it does not fi t anywhere in

§ 410(a)’s de fi nition of employment

.

De fi nition (C) includes Beeler’s and the detached worker’s

services for the same reason: their work is designated as em

‐ ployment under the Agreement, as they are both “employed

person[s]” under their respective sections of Article V. This

point is far subtler than the majority gives it credit. It is not

that Article V or other references to employment in the Agree

‐

ment creep in and modify the de fi nition of employment in the

U.S. Code. Rather, the employment is designated “under” the

Agreement because the Agreement recognizes it as employ

‐

ment and allocates its coverage. This follows from the funda

‐

mental structure of the Agreement, which assigns coverage of

work that is already predesignated as employment by the lo

‐

cal laws of either country. What de fi nition (C) does, then, is

piggyback o ff Canada’s de fi nition of employment. It recog

‐

nizes that the detached worker is an “employed person” un

‐

der Article V, § 2, because his work quali fi es as employment

under Canadian law, and then borrows that foreign de fi nition

to say that it is also employment under the Act. And now that

the detached worker’s services qualify as employment under36 No. 19

‐ 2099

the Act, he can be taxed and accrue coverage under the U.S.

system, just as Congress intended.

Thus, for purposes of the Canadian

‐ American Agreement,

the three de fi nitions of employment under § 410 are (A) any

service performed in the United States, regardless of resi

‐ dency or citizenship, (B) any service performed by an Ameri

‐

can citizen for an American employer, regardless of location,

and (C) any service designated as employment by Canadian

law regardless of residency, citizenship, or location (“regard

‐

less of where or by whom performed”). 42 U.S.C. § 410(a). Alt

‐ hough certainly broad, the majority is wrong to say this de fi

‐

nition includes all compensated services, even before ad

‐ dressing § 410(a)’s exclusions. This de fi nition is derived not

from common sense, but rather from the text of the Act and

the Agreement.

The Commissioner instead insists that de fi nition (C) in

‐

cludes service performed in Canada only if the United States

and Canada agree that those services should be subject to U.S.

Social Security contributions, and the majority apparently

agrees. But where does that limitation come from? The exact

same logic applied to the detached worker works even for

someone, like Beeler, who is an “employed person” under Ar

‐

ticle V, § 1. Her work is equally designated as employment by

Canadian law and its coverage is assigned to Canada “under”

the Agreement. Indeed, as she argues, e ff ectively all work in

either of the two signatories’ systems is designated as em

‐ ployment under the Agreement. The Agreement governs not

just the detached workers of the world—the hard cases that

require a tiebreaker—but also the easy cases, like a Canadian

working in Canada. This is the insight provided by Erlich v.No. 19

‐ 2099 37

United States

, 104 Fed. Cl. 12 (2012), on which Beeler relies and

which the majority gives short shrift.

The question presented in Erlich was the interpretation of

a tax provision, I.R.C. § 1401 note, which provides that a tax

‐

payer cannot receive a deduction or credit for “taxes paid

... with respect to any period of employment

... which is covered

under the social security system of [a] foreign country in ac

‐

cordance with the terms of a[ § 433] agreement.” Erlich

, 104

Fed. Cl. at 13

‐ 14 (quoting Social Security Amendments of

1977, Pub. L. No. 95

‐ 216, § 317(b)(4), 91 Stat. 1509, 1540). The

taxpayers argued that taxes were paid in accordance with an

agreement only if the agreement was the tiebreaker, and their

work was (they assumed) employment only in France, and

not the United States—meaning no tie. Id. at 15. The taxpay

‐

ers, like the Commissioner here with respect to de fi nition (C),

asserted that a detached worker fi t within this statute, but that

they did not because their work, like Beeler’s, would not have

been taxed by U.S. law anyway. Id.

The Erlich court, however, agreed with another Commis

‐

sioner (of Internal Revenue). It recognized that the French to

‐

talization agreement and § 433 were not limited to situations

of con fl ict—or as the majority calls them “points of intersec

‐

tion”—like a detached worker, but “extend[ed] to ‘employ

‐

ment or self

‐ employment, or any service which is recognized

as equivalent to employment or self

‐ employment under this

subchapter or the social security system of a foreign country

which is a party to such agreement.’” Id. at 17 (quoting 42

U.S.C. § 433(c)(1)(B)(i)). The inclusive “or” made it so the

agreement governed the full Venn diagram of employment in

each country, and not just the overlapping middle. Because of

this feature, it was “plain that the French social security taxes38 No. 19

‐ 2099

paid by Mr. Erlich for his work in France were paid for peri

‐

ods of coverage in accordance with the terms of the Totaliza

‐

tion Agreement.” Erlich

, 104 Fed. Cl. at 18. It was in accord

‐

ance with the agreement, and the French

‐ U.S. equivalent of

Article V, § 1, that coverage of French employment was as

‐ signed to France. 5

The same reasoning applies for de fi nition (C)’s phrase

“under an agreement.” Cf. Pereira v. Sessions

, 138 S. Ct. 2105,

2117 (2018) (recognizing that “under” is a “chameleon” but

can mean “in accordance with”). Just like how the Erlich tax

‐ payers’ work in France was assigned to France in accordance

with the agreement, Beeler’s work in Canada, designated as

employment by Canadian law, was assigned to the Canada

Pension Plan under the Agreement—speci fi cally under Arti

‐

cle V, § 1. That her work, unlike the detached worker’s, would

have been assigned to Canada anyway is no ma tt er. It was still

designated as employment under an agreement, even if the

Agreement enforced what would have been the default rule.

Because it was designated as employment under an agree

‐

ment, it is employment under § 410. And because it was

5 One modi fi cation to the Erlich analysis follows from Beeler’s logic.

The court there took the parties’ assumption that the taxpayers’ service in

France was not “employment” under the FICA de fi nition, I.R.C. § 3121(b),

which tracks 42 U.S.C. § 410(a). See Erlich

, 104 Fed. Cl. at 15 & n.4. I believe

it was employment under the FICA, albeit untaxed employment under the

terms of the agreement and I.R.C. § 3101(c). The court recognized this pos

‐ sibility, though only hypothetically “were the tax code to be amended.”

See Erlich

, 104 F.3d. Cl. at 17–18. Another way to frame this analysis is to

say that de fi nition (C) makes all employment in a foreign country with an

agreement into a tie for the agreement to break.No. 19

‐ 2099 39

employment under § 410, it is not “noncovered service” that

triggers the Provision. 6

I do not have any reason to believe that this was Con

‐ gress’s goal when it passed the Provision or de fi nition (C). I

doubt Congress wanted someone who works half his career

in civil service for his state government—one of the excep

‐

tions to the de fi nition of employment, 42 U.S.C. § 410(a)(7)—

to receive a smaller bene fi t, all else equal, than one who spent

half his career working in a foreign country. Beeler has two

explanations for this discrepancy, neither convincing. The

majority rightly rejects her fi rst, based on the equal

‐ treatment

provision in the Agreement. Second, she posits that Congress

did not want to “penalize” those with foreign pensions. But

Congress’s underlying premise in enacting the Provision is

that it was not imposing a penalty, but removing a windfall.

Still, it does not ma tt er that Congress might not have antici

‐ pated Beeler keeping her windfall, when the text leads to that

result. Perhaps the Provision would work be tt er, if instead of

asking whether service was employment, it asked whether it

had been covered and taxed like the Commission insists, but

“[o]ur job is to enforce the text on the books, not to add or

subtract quali fi ers that a litigant thinks would make the stat

‐

ute more sensible.” Gienapp v. Harbor Crest

, 756 F.3d 527, 531

(7th Cir. 2014).

There may be other arguments, including ones based on

the regulations, for reducing Beeler’s bene fi ts and avoiding

6 This may apply only to some of Beeler’s work in Canada. She

worked for years in Canada before either de fi nition (C) or the Agreement

existed. Neither party addresses whether these rules should be retroactive.40 No. 19

‐ 2099

her windfall. The majority, though, accomplished this goal

only by equating coverage with employment while outright

ignoring Beeler’s argument for why the two concepts can be

separated in the international sphere. Because I agree with

Beeler that employment is not necessarily covered employ

‐

ment, the majority’s reasoning does not convince me that af

‐

fi rmance is appropriate. I therefore respectfully dissent.