Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on January 13, 2022 (Part I); and cases granted review on January 10, 2022 (Part II).
Opinion: Babcock v. Kijakazi, 20-480
Babcock v. Kijakazi, 20-480. By an 8-1 vote, the Court held that “civil-service pension payments based on employment as a ‘dual-status military technician’—a federal civilian employee who provides technical or administrative assistance to the National Guard”—do not constitute “payments ‘based wholly on service as a member of a uniformed service.’” Congress has established a progressive formula based on average past earnings for determining the amount of Social Security benefits a retiree may receive. Under that formula, lower earners receive a higher percentage of their earnings in benefits. 42 U.S.C. §415(a)(1)(A). That formula originally did not count earnings exempt from Social Security taxes, so retirees who worked in those jobs were credited with artificially low average past earnings and thus received greater benefits, in addition to pension payments from those jobs. To eliminate the windfall, Congress “modif[ied] the formula to reduce benefits when a retiree receives such a separate pension payment,” yet “it exempted several categories of pension payments, including ‘a payment based wholly on service as a member of a uniformed service.’” See 42 U.S.C. §415(a)(7)(A)–(B). Because the civil-service pension payments at issue here do not fall within the exemption, they are subject to the windfall-elimination provision and thus the Social Security Administration properly reduced petitioner’s benefits.
Petitioner was a dual-status technician from 1975 to 2009. A “rare bird” in federal employment, dual-status technicians have characteristics of both the civil service and the uniformed service: They are “civilian employee[s]” engaged in activities to assist the National Guard, but they are also required to maintain membership in the National Guard and “must wear a uniform while working.” When petitioner retired and applied for Social Security, the Social Security Administration reduced his “benefits by about $100 per month” owing to the civil-service pension payments he received. Petitioner sought reconsideration on the ground “that his pension payments fell within the uniformed-services exception and so should not trigger this reduction.” But the agency, a district court, and the Sixth Circuit all upheld the reduction in benefits because his “civil-service pension payments were based on service in a civilian capacity and therefore did not fall within the uniformed-services exception.” In an opinion by Justice Barrett, the Court affirmed.
The Court concluded that the uniformed-services exception did not apply because petitioner’s technician work was not “service ‘as’ a member of the National Guard.” Beginning with the statute’s plain meaning, the Court explained that, given the context, the word “‘as’ is most naturally read to mean ‘[i]n the role, capacity, or function of,’” and the dual-status technician statute “broadly and repeatedly” establishes that “the role, capacity, or function in which a technician serves is that of a civilian, not a member of the National Guard.” The Court further determined that “the broader statutory context” bolstered this understanding because while working in their civilian capacity “technicians are not subject to the Uniform Code of Military Justice”; have “characteristically civilian rights to seek redress for employment discrimination and to earn workers’ compensation, disability benefits, and compensatory time off for overtime work”; and, if hired before 1984, “are members of the ‘civil service’ entitled to pensions under Title 5 of the U.S. Code, which governs the pay and benefits of civil servants.” Moreover, petitioner’s “civil-service pension payments are not based” on his service as a member of the National Guard, “for which he received separate military pension payments that do not trigger the windfall elimination provision.” And even though technicians must maintain National Guard membership, that does not “make all of the work that they do count as Guard service” because “[a] condition of employment is not the same as the capacity in which one serves.” By way of example, “[i]f a private employer hired only moonlighting police officers to be security guards, one would not call that employment ‘service as a police officer.’”
Justice Gorsuch dissented. He would have held “that dual-status technicians ‘serv[e] as’ members of the National Guard in all the work they perform for this country day in and day out.” While “appreciat[ing] the analogy” to moonlighting police officers, Justice Gorsuch argued that “dual-status technicians are more like part-time police officers employed in their outside hours by the same police department to train recruits, administer the precinct office, and repair squad cars—all on the condition that they wear their police uniforms and maintain their status as officers.” In his view, “Guardsmen who serve as ‘dual-status technicians’” would reasonably understand “all of their work to represent ‘service as . . . member[s]’ of the National Guard,” and he “would not curtail servicemembers’ Social Security benefits based primarily on implications extracted from other, separate ‘bookkeeping’ statutes.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]