FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCES MICHENER,

Plaintiff-Appellant,

v.

KILOLO KIJAKAZI, Acting 

Commissioner of Social Security;

SOCIAL SECURITY ADMINISTRATION,

Defendants-Appellees.

No. 20-16834

D.C. No.

5:19-cv-04377-

SVK

OPINION

Appeal from the United States District Court

for the Northern District of California

Susan G. Van Keulen, Magistrate Judge, Presiding

Argued and Submitted October 19, 2021

San Francisco, California

Filed December 30, 2021

Before: Paul J. Watford and Andrew D. Hurwitz, Circuit 

Judges, and M. Miller Baker,* Judge.

Opinion by Judge Hurwitz

*The Honorable M. Miller Baker, Judge for the United States Court 

of International Trade, sitting by designation.
2 MICHENER V. KIJAKAZI

SUMMARY**

Social Security

The panel affirmed the district court’s summary 

judgment in favor of the Social Security Administration in a 

putative class action alleging that reducing the Social 

Security benefits of class members based on the receipt of a 

foreign social security pension violated the Windfall 

Elimination Program, its implementing regulation, and the 

Agreement Between the Government of the United States of 

America and the Government of Canada with Respect to 

Social Security.

Plaintiff Frances Michener is a citizen of both the United 

States and Canada, as was her late husband, Dr. Steven 

Rosell. From 1976 to 1990, they lived in Canada where 

Rosell worked and participated in the Canada Pension Plan. 

During that period, Rosell did not contribute to the Social 

Security system. In 1990, Rosell and Michener moved to the 

United States where Rosell paid Social Security taxes on his 

earnings until becoming disabled in 2012. Rosell then began 

receiving Social Security disability benefits, in addition to 

benefits under the Canada Pension Plan, and Michener later 

began receiving Social Security spousal benefits. 

In June 2015, the Social Security Administration notified 

Rosell and Michener that their benefits would be reduced 

under the Windfall Elimination Program (“WEP’) because 

Rosell “received a pension based on work not covered by 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MICHENER V. KIJAKAZI 3

Social Security taxes,” and sought the return of $7,194.00 

for past overpayment of benefits. After seeking 

reconsideration and review by an administrative law judge, 

plaintiffs filed this putative action in federal court. 

WEP reduces the Social Security benefits of individuals 

who receive a pension for work not covered by the Social 

Security system. 42 U.S.C. § 415(a)(7). Under the WEP 

implementing regulation, noncovered employment includes 

“employment outside the United States which is not covered 

under the United States Social Security system.” 20 C.F.R. 

§ 404.213(a)(3). The statute allows service in other 

countries, which ordinarily would not be covered by the 

Social Security system, to be designated as “employment”—

and thereby excluded from the WEP—pursuant to a 

”totalization arrangement” agreement entered into under 

42 U.S.C. § 433 between the Social Security system and the 

corresponding system of a foreign country. Under a section 

433 agreement, employment or service may result in a 

“period of coverage” under either the Social Security system 

or the foreign country’s system, “but not under both.” Id. 

§ 433(c)(1)(B)(i). The United States and Canada have a 

section 433 agreement. 

The panel determined that nothing in the U.S.-Canada 

Agreement designated Rosell’s Canadian service as 

employment for purposes of the Social Security Act or 

recognized it as the equivalent of U.S. employment. The 

panel noted that plaintiffs’ reading of the Agreement would 

entitle a recipient to receive credit for service under both the 

U.S. and the Canadian social security systems for the same 

period of service, which is expressly prohibited under the 

Social Security Act. Likewise, if any service considered 

“employment” in Canada was also “employment” for 

purposes of U.S. Social Security, that service would be 
4 MICHENER V. KIJAKAZI

subject to Social Security taxes. See 26 U.S.C. § 3121(b). 

Rosell’s service was not. The panel concluded that the WEP 

applies to a Social Security beneficiary who receives 

benefits under the Canada Pension Plan. Because Rosell’s 

Canadian pension was based at least in part on his earnings 

for noncovered service, the agency correctly reduced the 

couple’s Social Security benefits.

COUNSEL

Thomas F. Allen, Jr. (argued), Frost Brown Todd LLC, 

Dallas, Texas; Aaron M. Bernay, Frost Brown Todd LLC 

Cincinnati, Ohio; William F. Murphy, Dillingham & 

Murphy, LLP, San Francisco, California; Jonathan M. 

Bruce, Law Office of Jonathan Bruce, LLC, Olathe, Kansas; 

for Plaintiff-Appellant.

Sushma Soni (argued) and Sharon Swingle, Appellate Staff; 

Stephanie Hinds, Acting United States Attorney; Brian M. 

Boynton, Principal Deputy Assistant Attorney General; 

Civil Division, United States Department of Justice, 

Washington, D.C.; Royce Min, General Counsel; Stacey W. 

Harris, Attorney; Office of Program Law, Office of the 

General Counsel, Social Security Administration, 

Washington, D.C.; for Defendants-Appellees.
MICHENER V. KIJAKAZI 5

OPINION

HURWITZ, Circuit Judge:

The Windfall Elimination Program (“WEP”) reduces the 

Social Security benefits of individuals who receive a pension 

for work not covered by the Social Security system. 42 

U.S.C. § 415(a)(7). The question for decision is whether the 

WEP applies to a Social Security beneficiary who receives 

benefits under the Canada Pension Plan. The Social Security 

Administration (“SSA”) concluded that it does, and the 

district court upheld the agency determination. We agree.

I.

Frances Michener is a citizen of both the United States 

and Canada, as was her late husband, Dr. Steven Rosell. 

From 1976 to 1990, they lived in Canada where Rosell 

worked and participated in the Canada Pension Plan. During 

that period, Rosell did not contribute to the Social Security 

system. In 1990, Rosell and Michener moved to the United 

States where Rosell paid Social Security taxes on his 

earnings until becoming disabled in 2012. Rosell then began 

receiving Social Security disability benefits, in addition to 

benefits under the Canada Pension Plan, and Michener later 

began receiving Social Security spousal benefits.

In June 2015, SSA notified Rosell and Michener that 

their benefits would be reduced under the WEP because 

Rosell “received a pension based on work not covered by 

Social Security taxes,” and sought the return of $7,194.00 

for past overpayment of benefits. Rosell and Michener 

sought reconsideration by SSA, and review by an 

Administrative Law Judge and the Appeals Council, each of 

whom held that the couple’s Social Security benefits were 

subject to reduction under the WEP.
6 MICHENER V. KIJAKAZI

Rosell and Michener then filed this putative class action 

in federal court; after Rosell’s death in December 2018, 

Michener became the lead plaintiff. The complaint alleged 

that reducing the Social Security benefits of class members 

based on the receipt of a foreign social security pension 

violated the WEP, its implementing regulation, and the 

Agreement Between the Government of the United States of 

America and the Government of Canada with Respect to 

Social Security (the “U.S.-Canada Agreement”), Can.-U.S., 

Mar. 11, 1981, 35 U.S.T. 3405. The district court granted 

summary judgment to the agency and denied a motion for 

class certification as moot. Michener v. Berryhill, No. 19-

cv-04377-SVK, 2020 WL 4810693, at *8 (N.D. Cal. July 24, 

2020). This timely appeal followed.

II.

We review the district court’s judgment de novo, Larson 

v. Saul, 967 F.3d 914, 922 (9th Cir. 2020), and the starting 

point for that review is the statutory framework. The Social 

Security Act “provides old-age, survivor, and disability 

benefits to insured individuals irrespective of financial 

need.” Bowen v. Galbreath, 485 U.S. 74, 75 (1988) (citing 

42 U.S.C. §§ 403, 423)). Individuals with 40 quarters of 

coverage are entitled to retirement and disability benefits. 42 

U.S.C. § 414(a)(2). The period of “coverage” credited 

depends on the amount of time spent in “covered” service—

service for which individuals “pay social-security taxes and 

are entitled to social-security retirement benefits on their 

earnings.” Larson, 967 F.3d at 918. The system is 

progressive, so participants with lower career earnings 

receive a greater percentage of their earnings in Social 

Security benefits than those with higher career earnings. Id. 

Before 1983, a pension received from noncovered 

employment did not affect a participant’s Social Security 
MICHENER V. KIJAKAZI 7

benefits. Id. “Consequently, an individual who worked for 

both covered and noncovered wages would receive a 

windfall absent the WEP because he would be eligible for 

both social security retirement benefits and [other] pension 

payments.” Das v. Dep’t of Health & Hum. Servs., 17 F.3d 

1250, 1253 (9th Cir. 1994); see also Federal Old-Age, 

Survivors and Disability Insurance; Effect of Pension From 

Noncovered Employment, 52 Fed. Reg. 47,914, 47,915 

(Dec. 17, 1987) (“[T]he worker with a low earnings history 

but not pension from noncovered work receives a relatively 

high replacement of former earnings when compared to the 

worker with a history of high covered earnings. This is what 

Congress intended. But where a worker with low earnings 

because of minimal covered employment also receives a 

pension from noncovered employment, the result is the 

unintended windfall of Social Security benefits.”). Congress 

addressed this issue by adding the WEP, 42 U.S.C. 

§ 415(a)(7), to the Social Security Act. Pub. L. No. 98-21, 

§ 113, 97 Stat. 65, 76–79 (1983). When applicable, the WEP 

formula reduces Social Security benefits by no more than 

“one-half of the portion of the monthly periodic payment 

which is attributable to noncovered service.” 42 U.S.C. 

§ 415(a)(7)(B)(i). The WEP applies to 

an individual whose primary insurance 

amount would be computed under [the

standard formula], who . . . becomes eligible 

after 1985 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 defined in 

section 410 of this title for purposes of this 

subchapter (hereafter in this paragraph and in 

subsection (d)(3) referred to as “noncovered 

service”).
8 MICHENER V. KIJAKAZI

Id. § 415(a)(7)(A)(ii). Under the WEP implementing 

regulation, noncovered employment includes “employment 

outside the United States which is not covered under the 

United States Social Security system.” 20 C.F.R. 

§ 404.213(a)(3).

The WEP expressly adopts the definition of 

“employment” in 42 U.S.C. § 410(a), as

any service, of whatever nature, performed 

after 1950 (A) 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 

. . . or (B) outside the United States by a 

citizen or resident of the United States as an 

employee (i) of an American employer (as 

defined in subsection (e) of this section), or 

(ii) of a foreign affiliate (as defined in section 

3121(l)(6) of the Internal Revenue Code of 

1986) of an American employer during any 

period for which there is in effect an 

agreement, entered into pursuant to section 

3121(l) of such Code, with respect to such 

affiliate, or (C) if it is 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.

(emphasis added). A participant’s “employment” is used to 

determine “wages,” id. § 409(a) (“remuneration paid . . . for 

employment”), and wages in turn determine periods of 
MICHENER V. KIJAKAZI 9

coverage for Social Security eligibility, id. 

§ 413(a)(2)(A)(ii) (awarding quarters of coverage based on 

“the total of the wages paid . . . in a calendar year”). The 

definition of employment in § 410(a) is also materially 

identical to the definition in the Internal Revenue Code, 26 

U.S.C. § 3121(b), identifying service subject to Social 

Security taxation. See also 26 U.S.C. § 3101(a) (authorizing 

Social Security taxes on “wages . . . received by the 

individual with respect to employment (as defined in section 

3121(b))”).

An agreement “entered into under section 433” is a 

“totalization arrangement” between the Social Security 

system and the corresponding system of a foreign country. 

42 U.S.C. § 433(a). The purpose of a totalization 

arrangement is to establish how periods of coverage accrued 

under two countries’ systems are treated by each to establish 

eligibility for benefits. Id.; see also Eshel v. Comm’r, 831 

F.3d 512, 514 (D.C. Cir. 2016) (explaining that section 433 

agreements permit “workers who divide their careers among 

and pay taxes to multiple countries” to “combine periods of 

payment into different countries’ social security systems to 

eventually become eligible to receive benefits under a 

signatory country’s system”). A “period of coverage” is 

defined as “a period of payment of contributions or a period 

of earnings based on wages for employment or on selfemployment income, or any similar period recognized as 

equivalent thereto under this subchapter or under the social 

security system of a country which is a party to an agreement 

entered into under this section.” 42 U.S.C. § 433(b)(2). 

Under a section 433 agreement, employment or service may 

result in a “period of coverage” under either the Social 

Security system or the foreign country’s system, “but not 

under both.” Id. § 433(c)(1)(B)(i). The United States and 
10 MICHENER V. KIJAKAZI

Canada have a section 433 agreement. See Beeler v. Saul, 

977 F.3d 577, 583 (7th Cir. 2020) (describing agreement).

III.

The dispositive issue in this case is whether the U.S.-

Canada Agreement designates Rosell’s Canadian service as 

employment under the Social Security Act. If so, Rosell’s 

Canadian pension would be based on earnings for service 

that did constitute employment, and the WEP would not 

apply.

The WEP provides that service which is not employment 

is “hereafter in this paragraph and in subsection (d)(3) 

referred to as ‘noncovered service.’” 42 U.S.C.

§ 415(a)(7)(A)(ii). The district court correctly held that the 

statute thus “equates ‘service which did not constitute 

“employment” as defined in section 410’ with ‘noncovered 

service’ on which no Social Security taxes were paid.” 

Michener, 2020 WL 4810693, at *5. Indeed, in other 

contexts, courts have “routinely construed ‘employment’ 

under § 410 as consistent with ‘covered employment,’ that 

is, work on which Social Security taxes were paid.” Beeler, 

977 F.3d at 586; see also Flemming v. Nestor, 363 U.S. 603, 

608 (1960) (“Broadly speaking, eligibility for benefits 

depends on satisfying statutory conditions as to 

(1) employment in covered employment or selfemployment . . .”).

However, the statute also provides that the WEP does not 

apply to pensions received because of service “designated as 

employment or recognized as equivalent to employment” in 

a section 433 agreement. 42 U.S.C. § 410(a)(C). Thus, the 

statute allows service in other countries, which ordinarily 

would not be covered by the Social Security system, to be 

designated as “employment”—and thereby excluded from 
MICHENER V. KIJAKAZI 11

the WEP—through a section 433 agreement between the 

United States and another country. Michener argues that the 

U.S.-Canada Agreement does so for Rosell’s work in 

Canada.

Michener’s argument rests on a general provision of the 

Agreement, which provides that “[a]ny term not defined in 

this Article has the meaning assigned to it in the applicable 

laws.” U.S.-Canada Agreement, Art. I ¶ 11. The Agreement 

later defines “applicable laws” as U.S. Social Security laws 

(Title II of the Social Security Act and related regulations, 

and Chapters 2 and 21 of the Internal Revenue Code and 

related regulations), Canada’s social security laws (the Old 

Age Security Act and related regulations), and the Canada 

Pension Plan (and its regulations). Id., Art. II ¶ 1. Michener 

contends that because “employment” is not defined in the 

Agreement, the term includes “employment” as defined in 

Canadian law, and therefore Rosell’s Canadian service is 

“employment” excluded from the WEP.

We disagree. Michener misconstrues both the function 

of section 433 agreements and the U.S.-Canada Agreement 

itself. The relevant provision of the Social Security Act 

defines “employment” as service that “is designated as 

employment or recognized as equivalent to employment” by 

a section 433 agreement. 42 U.S.C. § 410(a)(C) (emphasis 

added). Nothing in the U.S.-Canada Agreement designates 

Rosell’s Canadian service as employment for purposes of the 

Social Security Act or recognizes it as the equivalent of U.S. 

employment. Rather, the definitional section on which 

Michener relies simply acknowledges that each country has 

defined employment in its own laws. It does not follow that 

any work in Canada subject to Canadian laws, such as 
12 MICHENER V. KIJAKAZI

Rosell’s Canadian service, is “designated as employment” 

by the U.S.-Canada Agreement.1

Indeed, when the drafters of the Agreement wanted to 

make work performed in Canada “subject to” the Social 

Security Act, they did so explicitly. For example, Article V 

¶ 2(a) provides:

Where a person who is normally employed in 

the territory of one Contracting State and who 

is covered under its laws in respect of work 

performed for an employer having a place of 

business in that territory is sent by that 

employer to work for the same employer in 

the territory of the other Contracting State, 

the person shall be subject to the laws of only 

the first Contracting State in respect of that 

work, as if it were performed in the territory 

of the first Contracting State.

Similarly, Article VII ¶ 1 provides that when an individual 

lacks the sufficient quarters of coverage to be eligible for 

Social Security benefits, “periods of coverage completed 

under the Canada Pension Plan shall be taken into account 

to the extent they do not coincide with calendar quarters 

already credited as quarters of coverage under United States 

laws.” If the general reference in Article I to undefined 

terms being defined under the applicable laws of each nation 

were read as Michener suggests, there would be no need for 

1 Michener also points to the clause in Article V ¶ 1 of the 

Agreement providing that “an employed person who works in the 

territory of one of the Contracting States shall, in respect of that work, 

be subject to the laws of only that Contracting State.” However, the fact 

that service in Canada is governed by Canadian law does not designate 

that service as employment under the Social Security Act.
MICHENER V. KIJAKAZI 13

this provision; all service treated as employment under the 

Canadian system would automatically count toward Social 

Security eligibility. See Republic of Ecuador v. Mackay, 742 

F.3d 860, 864 (9th Cir. 2014) (explaining the “cardinal rule 

of statutory interpretation that no provision should be 

construed to be entirely redundant”) (cleaned up).

Moreover, Michener’s reading of the Agreement would 

entitle a recipient to receive credit for service under both the 

U.S. and Canadian social security systems for the same 

period of service. But this is expressly prohibited under the 

Social Security Act. See 42 U.S.C. § 433(c)(1)(B)(i) 

(providing that, regardless of the terms of a section 433 

agreement, employment or service may result in a “period of 

coverage” under either the Social Security system or the 

foreign country’s system, “but not under both”). Likewise, 

if any service considered “employment” in Canada was also 

“employment” for purposes of U.S. Social Security, that 

service would be subject to Social Security taxes. See 26 

U.S.C. § 3121(b). Rosell’s service was not.

The WEP’s implementing regulation, 20 C.F.R. 

§ 404.213, entitled “Computation where you are eligible for 

a pension based on your noncovered employment,” states 

that SSA will apply the WEP formula to an individual’s 

Social Security benefits if he becomes eligible for another 

monthly pension. Id. § 404.213(a)(3). It then provides, 

parenthetically:

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 benefits on earnings but not 
14 MICHENER V. KIJAKAZI

on residence or citizenship, and those from 

private employers.

Id. Michener urges that the parenthetical phrase “base[d] . . . 

on residence or citizenship” means that if residency or 

citizenship plays any role in pension eligibility, that pension 

is excluded from the WEP. Thus, although she 

acknowledges that the amount of Rosell’s Canada Pension 

Plan payment was determined in part by his Canadian 

earnings, Michener argues that his pension is excluded from 

the WEP under the regulation because it is available only to 

Canadian citizens or residents.

Michener’s reading is not supported by the text of the 

regulation, which says that a pension is from noncovered 

employment, and therefore subject to the WEP, if it “base[s] 

benefits on earnings”—not if pension eligibility or 

entitlement is based “solely” on earnings. 20 C.F.R. 

§ 404.213(a)(3) (emphasis added). Moreover, the statute 

itself expressly provides that the WEP applies to a pension 

“which is based in whole or in part upon [an individual’s] 

earnings for service which did not constitute ‘employment’ 

as defined in section 410 of this title for purposes of this 

subchapter.” 42 U.S.C. § 415(a)(7)(A)(ii) (emphasis 

added).

IV.

The SSA and the district court properly interpreted the 

WEP and the U.S.-Canada Agreement. Because Rosell’s 

Canadian pension was based at least in part on his earnings 
MICHENER V. KIJAKAZI 15

for noncovered service, the agency correctly reduced the 

couple’s Social Security benefits.2

AFFIRMED.

2 Our interpretation of the statutory and regulatory scheme and the 

Agreement is in accord with that of the Seventh Circuit in Beeler. 977 

F.3d at 581. To the extent that Rabanal v. Colvin, 987 F. Supp. 2d 1106 

(D. Colo. 2013), is to the contrary, we decline to follow it.