SCOTUS Rejects Claims of Dual-status Military Technician

In Babcock v. Kijakazi, 595 U.S. ____ (2022), the U.S. Supreme Court held that civil-service pension payments based on employment as a dual-status military technician are not payments based on “service as a member of a uniformed service” under 42 U.S.C. § 415(a)(7)(A)(III). Justice Neil Gorsuch dissented from the eight-member majority’s opinion.

Facts of the Case

The case involved retirement benefits due under the Social Security Act for a retired “military technician (dual status),” a civilian position formerly held by David Babcock. Like all dual-status technicians, Babcock was required to maintain membership in the National Guard. For his full-time job as a technician, which included work as a test pilot and pilot instructor, Babcock received civil-service pay and Civil Service Retirement System pension payments from the Office of Personnel Management. For his separate National Guard service, which included part-time drills, training exercises, and one active-duty deployment, Babcock received military pay and military pension payments from a different arm of the Federal Government, the Defense Finance and Accounting Service.

Upon retirement, Babcock applied to the Social Security Administration for benefits. The agency granted Babcock benefits but applied a statutory “windfall elimination provision” and reduced the amount of benefits to reflect Babcock’s receipt of civil-service pension payments for his work as a technician. Babcock sought reconsideration, arguing that the reduction should not apply because the pension payments at issue fell within a statutory exception for payments “based wholly on service as a member of a uniformed service.” The Social Security Act generally reduces the benefits of retirees who receive payments from separate pensions based on employment not subject to Social Security taxes. The reduction is not triggered, though, by payments “based wholly on service as a member of a uniformed service.” The agency denied reconsideration, and Babcock exhausted available avenues of agency review before filing suit in federal court.

The District Court upheld the agency’s decision. The Sixth Circuit affirmed, concluding that Babcock’s civil-service pension payments were based on service in a civilian capacity and therefore did not fall within the uniformed-services exception. While the majority of circuits to address the question have reached the same result, one disagreed, resulting in a circuit split.

Supreme Court’s Decision

The Supreme Courtaffirmed, holding that Babcock’s civil-service pension payments fall outside the Social Security Act’s uniformed-services exception because they are based on service in his civilian capacity. Justice Amy Coney Barrett wrote on behalf of the majority.

As Justice Barrett explained, the question before the Court is whether Babcock’s civil-service pension for technician work avoids triggering the provision’s reduction in benefits because it falls within the exception for “a payment based wholly on service as a member of a uniformed service,” the answer to which depends on whether Babcock’s technician work was service “as” a member of the National Guard.

The Court ultimately concluded it was not. In support, Justice Barrett cited that the statute, which defines the role, capacity, or function in which a technician serves as that of a civilian: “For purposes of this section and any other provision of law,” a technician “is” a “civilian employee,” “assigned to a civilian position” and “authorized and accounted for as” a “civilian.”

According to Justice Barrett, the statute’s plain meaning becomes even more apparent when viewed in the broader statutory context. She noted that while working in a civilian capacity, technicians are not subject to the Uniform Code of Military Justice; they possess characteristically civilian rights to seek redress for employment discrimination and to earn workers’ compensation, disability benefits, and compensatory time off for overtime work; and technicians 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. “These provisions demonstrate that Congress consistently distinguished technician employment from National Guard Service,” Justice Barrett wrote.

The Court went on to find that the distinction holds true even though Babcock also served at other times in a different capacity as a member of the National Guard, citing that his civil-service pension payments are not based on that service, for which he received separate military pension payments that do not trigger the windfall elimination provision. The Court was also unpersuaded by Babcock’s argument that the statutory requirement for technicians to maintain National Guard membership makes all of the work that they do count as Guard service

“A condition of employment is not the same as the capacity in which one serves. If a private employer hired only moonlighting police officers to be security guards, one would not call that employment ‘service as a police officer,’” Justice Barrett explained. “So too here: the fact that the Government hires only National Guardsmen to be technicians does not erase the distinction between the two jobs.”

The Court also rejected Babcock’s argument that the word “as” may sometimes bear the looser meaning “in the likeness of ” or “the same as,” rather than “in the capacity of,” so that the uniformed-services exception would apply to “a payment based wholly on service [in the likeness of or the same as] a member of a uniformed service.”

“Babcock’s functional test is inconsistent with the choices that Congress made in the statutory scheme. Determining whether Babcock’s technician employment was service ‘as’ a member of the National Guard does not turn on factors like whether he wore his uniform to work,” Justice Barrett wrote. “It turns on how Congress classified the job—and as already discussed, Congress classified dual-status technicians as ‘civilian.’ Babcock dismisses that distinction as one drawn for purposes of ‘administrative bookkeeping,’ but bookkeeping matters when it comes to pay and benefits.”