Babcock v. Kijakazi ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BABCOCK v. KIJAKAZI, ACTING COMMISSIONER OF
SOCIAL SECURITY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 20–480. Argued October 13, 2021—Decided January 13, 2022
This case concerns retirement benefits due under the Social Security Act
for a retired “military technician (dual status),” 10 U. S. C. §10216, a
civilian position formerly held by David Babcock. Like all dual-status
technicians, Babcock was required to maintain membership in the Na-
tional 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 ac-
tive-duty deployment, Babcock received military pay and military pen-
sion 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 re-
ceipt 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 uni-
formed service.” The agency denied reconsideration, and Babcock ex-
hausted available avenues of agency review before filing suit in federal
court. The District Court upheld the agency’s decision, and the Sixth
Circuit affirmed.
Held: 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).
2 BABCOCK v. KIJAKAZI
Syllabus
Retirees receive Social Security benefits based on a progressive for-
mula that awards a percentage of average past earnings.
§415(a)(1)(A). The formula originally did not account for earnings from
jobs exempt from Social Security taxes, many of which provide sepa-
rate pensions. In response to this potential windfall, Congress modi-
fied the formula to reduce benefits when a retiree receives such a sep-
arate pension payment. But Congress left benefits unchanged if the
pension payment was “based wholly on service as a member of a uni-
formed service.” §415(a)(7)(A)(III). The National Guard of the United
States is defined as a uniformed service, §410(m), so whether the uni-
formed-services exception applies depends on whether Babcock’s tech-
nician work was service “as” a member of the National Guard.
It was not. In context, “as” is most naturally read to mean “[i]n the
role, capacity, or function of.” American Heritage Dictionary 106. And
the statute 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.”
10 U. S. C. §§10216(a)(1), (a)(1)(C), (a)(2). Technicians hired before
1984 like Babcock are members of the “civil service” entitled to pen-
sions under Title 5 of the U. S. Code, which governs the pay and bene-
fits of civil servants. See 5 U. S. C. §2101. Looking to the broader
statutory context, technicians possess characteristically civilian rights
to seek redress for employment discrimination and to receive workers’
compensation, disability benefits, and compensatory time off for over-
time work. These provisions demonstrate that Congress consistently
distinguished technician employment from National Guard service.
That distinction holds true even though Babcock also served at other
times in a different capacity as a member of the National Guard. 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. And a condition of employment, such
as the requirement that a technician maintain Guard membership, is
not the same as the capacity in which one serves. Babcock contends
that the technician job’s qualifications, duties, and dress code render
it functionally indistinguishable from National Guard service, and
that the Court should interpret “as” more loosely to capture payments
for “service [in the likeness of or the same as] a member of a uniformed
service.” But the Court finds no reason to adopt a meaning of “as”
other than the most natural one, particularly when Babcock’s func-
tional test is inconsistent with the statutory scheme. Determining
whether Babcock’s employment was service “as” a member of the Na-
tional Guard does not turn on factors like whether he wore his uniform
to work but rather on how Congress classified the position. Congress’
Cite as: 595 U. S. ____ (2022) 3
Syllabus
civilian classification of dual-status technicians for “bookkeeping” pur-
poses controls when it comes to pay and benefits. Pp. 4–7.
959 F. 3d 210, affirmed.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, ALITO, SOTOMAYOR, KAGAN, and KAVANAUGH,
JJ., joined. GORSUCH, J., filed a dissenting opinion.
Cite as: 595 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–480
_________________
DAVID BRYON BABCOCK, PETITIONER v.
KILOLO KIJAKAZI, ACTING COMMISSIONER
OF SOCIAL SECURITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[January 13, 2022]
JUSTICE BARRETT delivered the opinion of the Court.
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.” We
must decide whether this exception applies to civil-service
pension payments based on employment as a “dual-status
military technician”—a federal civilian employee who pro-
vides technical or administrative assistance to the National
Guard. We hold that it does not.
I
A
Retirees receive Social Security benefits according to a
statutory formula based on average past earnings. 42
U. S. C. §415(a)(1)(A). The formula is progressive in that it
awards lower earners a higher percentage of their earnings.
(Think of it like an income tax that lets you keep more of
your 1st dollar earned than your 10,000th.) But the for-
mula originally did not count earnings from jobs exempt
2 BABCOCK v. KIJAKAZI
Opinion of the Court
from Social Security taxes, so it calculated artificially low
earnings for retirees who spent part of their careers in those
jobs. As a result, those retirees received an artificially high
percentage of their calculated earnings in Social Security
benefits—plus, in many cases, payments from separate
pensions to boot.
Congress responded to this “windfall” by modifying the
formula to reduce benefits when a retiree receives such a
separate pension payment. Social Security Amendments of
1983, §113(a), 97 Stat. 76–78, 42 U. S. C. §§415(a)(7)(A)–
(B). But it exempted several categories of pension pay-
ments, including “a payment based wholly on service as a
member of a uniformed service.” Social Security Independ-
ence and Program Improvements Act of 1994, §308(b), 108
Stat. 1522–1523, 42 U. S. C. §415(a)(7)(A)(III). The upshot
is that pensions based on uniformed service do not trigger
a reduction in Social Security benefits.
This case concerns the application of the windfall elimi-
nation provision to a unique position in federal employ-
ment: the “military technician (dual status).” 10 U. S. C.
§10216. As its name suggests, this rare bird has character-
istics of two different statuses. On one hand, the dual-sta-
tus technician is a “civilian employee” engaged in “organiz-
ing, administering, instructing,” “training,” or
“maintenance and repair of supplies” to assist the National
Guard. §10216(a)(1)(C); 32 U. S. C. §§709(a)(1)–(2). On the
other, the technician “is required as a condition of that em-
ployment to maintain membership in the [National Guard]”
and must wear a uniform while working. 10 U. S. C.
§10216(a)(1)(B); 32 U. S. C. §§709(b)(2)–(4).
This dual role means that technicians perform work in
two separate capacities that yield different forms of com-
pensation. First, they work full time as technicians in a
civilian capacity. For this work, they receive civil-service
pay and, if hired before 1984, Civil Service Retirement Sys-
Cite as: 595 U. S. ____ (2022) 3
Opinion of the Court
tem pension payments from the Office of Personnel Man-
agement. See 5 U. S. C. §§2101, 8332(b)(6); 42 U. S. C.
§410(a)(6)(A) (1970 ed.); 26 U. S. C. §3121(b)(6)(A) (1970
ed.).1 Second, they participate as National Guard members
in part-time drills, training, and (sometimes) active-duty
deployment. See 32 U. S. C. §§502(a), 709(g)(2). For this
work, they receive military pay and pension payments from
a different arm of the Federal Government, the Defense Fi-
nance and Accounting Service. See 37 U. S. C. §§204, 206;
10 U. S. C. §113.
B
David Babcock worked as a dual-status technician from
1975 to 2009. In his technician capacity, he worked full
time as a test pilot and pilot instructor supporting the Mich-
igan Army National Guard. Like all dual-status techni-
cians, Babcock also served in the National Guard himself.
In that capacity, he participated in part-time training and
weekend drills, and he deployed to Iraq on active duty for
about a year. From 2009 to 2014, he worked for a private
employer flying helicopters.
After retiring, Babcock applied to the Social Security Ad-
ministration for benefits. The agency granted his applica-
tion but determined that his civil-service pension pay-
ments, which he received for his work as a civilian
technician, triggered the windfall elimination provision. So
the agency applied the modified formula to reduce his So-
cial Security benefits by about $100 per month. Babcock
sought reconsideration, arguing that his pension payments
fell within the uniformed-services exception and so should
not trigger this reduction in benefits. The agency denied
reconsideration, and an Administrative Law Judge and the
agency’s Appeals Council upheld the decision.
——————
1 Technicians hired since 1984, like other federal civil servants hired
after that point, do not receive a Civil Service Retirement System pen-
sion. See 42 U. S. C. §410(a)(5)(B)(i).
4 BABCOCK v. KIJAKAZI
Opinion of the Court
Babcock then sued 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. Bab-
cock v. Commissioner of Social Security, 959 F. 3d 210(2020). While most circuits to address the question have
reached the same result, one has come out the other way.2
We granted certiorari to resolve the split. 592 U. S. ___
(2021).
II
Babcock argues that the agency and courts below erred
in reducing his Social Security benefits based on his pen-
sion for technician employment. The dispute is narrow: All
agree that Babcock’s separate military pension for his Na-
tional Guard service does not trigger the windfall elimina-
tion provision. And all agree that Civil Service Retirement
System pensions generally do trigger that provision. The
only question 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 pay-
ment based wholly on service as a member of a uniformed
service.” 42 U. S. C. §415(a)(7)(A)(III). The answer de-
pends on whether Babcock’s technician work was service
“as” a member of the National Guard. See §410(m) (defin-
ing “member of a uniformed service” to include a member of
a “reserve component” as defined in 38 U. S. C. §101(27),
which includes the Army National Guard of the United
States).3
——————
2 Compare Linza v. Saul, 990 F. 3d 243 (CA2 2021); Newton v. Com-
missioner Social Security, 983 F. 3d 643 (CA3 2020); Larson v. Saul, 967
F. 3d 914 (CA9 2020); Kientz v. Commissioner, SSA, 954 F. 3d 1277(CA10 2020); Martin v. SSA, Comm’r, 903 F. 3d 1154 (CA11 2018) (per
curiam), with Petersen v. Astrue, 633 F. 3d 633 (CA8 2011).
3 For the first time in this Court, the Government argues that Bab-
cock’s claim fails for the independent reason that the State National
Cite as: 595 U. S. ____ (2022) 5
Opinion of the Court
It was not. In context, “as” is most naturally read to mean
“[i]n the role, capacity, or function of.” American Heritage
Dictionary 106 (3d ed. 1992); see also 1 Oxford English Dic-
tionary 674 (2d ed. 1989) (“[i]n the character, capacity, or
rôle of ”). And the role, capacity, or function in which a tech-
nician serves is that of a civilian, not a member of the Na-
tional Guard. The statute defining the technician job
makes that point broadly and repeatedly: “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.” 10
U. S. C. §§10216(a)(1), (a)(1)(C), (a)(2).
This statute’s plain meaning “becomes even more appar-
ent when viewed in” the broader statutory context. FCC v.
AT&T Inc., 562 U. S. 397, 407 (2011). While working in a
civilian capacity, technicians are not subject to the Uniform
Code of Military Justice. See 10 U. S. C. §§802(a)(3)(A)(ii),
12403, 12405. They possess characteristically civilian
rights to seek redress for employment discrimination and
to earn workers’ compensation, disability benefits, and com-
pensatory time off for overtime work. See 32 U. S. C.
§709(f )(5); 42 U. S. C. §2000e–16; 5 U. S. C. §§8101 et seq.,
8337(h), 8451; 32 U. S. C. §709(h). And, as particularly sig-
nificant in the context of retirement benefits, 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. See 5 U. S. C. §2101.
These provisions demonstrate that Congress consistently
distinguished technician employment from National Guard
——————
Guard in which he served, as distinct from the National Guard of the
United States, is not a “uniformed service” under the statute. We need
not reach this question to decide the case and express no view of the Gov-
ernment’s alternative argument, which was neither pressed nor passed
upon below. See Adarand Constructors, Inc. v. Mineta, 534 U. S. 103,
110 (2001) (per curiam) (“ ‘[T]his is a court of final review and not first
view’ ”).
6 BABCOCK v. KIJAKAZI
Opinion of the Court
service.
That distinction holds true even though Babcock also
served at other times in a different capacity as a member of
the National Guard. 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. Nor are we moved by Babcock’s ar-
gument 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 em-
ployment “service as a police officer.” So too here: the fact
that the Government hires only National Guardsmen to be
technicians does not erase the distinction between the two
jobs.
Babcock protests that the distinction is not meaningful.
He argues that the word “as” may sometimes bear the
looser meaning “in the likeness of ” or “the same as,” rather
than “in the capacity of.” Reply Brief 4–5. With this looser
meaning of “as,” 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.” The
technician job satisfies this functional test, Babcock says,
because whatever its classification, the job’s qualifications,
duties, and dress code render it indistinguishable from Na-
tional Guard service. According to Babcock, Congress’
choice to designate the technician’s work as “civilian” is ir-
relevant to the uniformed-services exception. Brief for Pe-
titioner 3.
We are unpersuaded. To begin with, the only reason Bab-
cock advances for choosing his functional interpretation of
“as” is that Congress used the word “capacity” (or the argu-
ably analogous “status”) in other provisions and did not do
so in the uniformed-services exception. See, e.g., 32 U. S. C.
Cite as: 595 U. S. ____ (2022) 7
Opinion of the Court
§101(19) (“status as a member”); 10 U. S. C. §723(a) (“em-
ploy[ment] in” a “capacity”). But these scattered provisions
do not create the kind of “stark contrast” that might counsel
adoption of a meaning other than the most natural one. Cf.
Astrue v. Ratliff, 560 U. S. 586, 595 (2010). At most, they
illustrate that Congress has employed several variations on
the same theme to distinguish between service in different
capacities.
More importantly, though, Babcock’s functional test is in-
consistent with the choices that Congress made in the stat-
utory 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. It turns on how Congress classified the
job—and as already discussed, Congress classified dual-sta-
tus technicians as “civilian.” Babcock dismisses that dis-
tinction as one drawn for purposes of “administrative
bookkeeping,” but bookkeeping matters when it comes to
pay and benefits.
* * *
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. We there-
fore affirm the judgment of the Court of Appeals.
It is so ordered.
Cite as: 595 U. S. ____ (2022) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–480
_________________
DAVID BRYON BABCOCK, PETITIONER v.
KILOLO KIJAKAZI, ACTING COMMISSIONER
OF SOCIAL SECURITY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[January 13, 2022]
JUSTICE GORSUCH, dissenting.
As the only dissenter on this narrow question of statutory
interpretation, I confess trepidation. Still, I cannot help but
find compelling the arguments advanced by the petitioner
before us and by the Eighth Circuit in Petersen v. Astrue,
633 F. 3d 633, 637–638 (2011).
Dual-status military technicians hold “a unique position
in federal employment.” Ante, at 2. Not only do they some-
times serve on active duty, as the petitioner did. Babcock
v. Commissioner of Social Security, 959 F. 3d 210, 212 (CA6
2020). By statute, they spend the rest of their time working
for the Guard—on matters ranging from training others to
administration to equipment maintenance. 10 U. S. C.
§ 10216(a)(1)(C); 32 U. S. C. § 709(a). At all times, they
must “maintain membership” in the National Guard and
wear a Guard uniform while on the job. 10 U. S. C.
§ 10216(a)(1)(B); 32 U. S. C. § 709(b). The authority to dis-
charge or discipline these individuals, too, rests with the
Adjutant General. §§ 709(d), (f ). Given these features of
their employment, I would hold that dual-status techni-
cians “serv[e] as” members of the National Guard in all the
work they perform for this country day in and day out. 42
U. S. C. § 415(a)(7)(A)(III).
I appreciate the analogy to police officers moonlighting as
2 BABCOCK v. KIJAKAZI
GORSUCH, J., dissenting
private security guards. Ante, at 6. But to my mind dual-
status technicians are more like part-time police officers
employed in their outside hours by the same police depart-
ment 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. I sus-
pect most reasonable officers in that situation would con-
sider the totality of their work to constitute “service as . . .
member[s]” of the police force. So too here I expect most
Guardsmen who serve as “dual-status technicians”—who
come to work every day for the Guard, in a Guard uniform,
and subject to Guard discipline—would consider all of their
work to represent “service as . . . member[s]” of the National
Guard. I would honor that reasonable understanding and
would not curtail servicemembers’ Social Security benefits
based primarily on implications extracted from other, sep-
arate “bookkeeping” statutes. Ante, at 7.