Babcock v. Kijakazi

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 1
Pages 77–86
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
January 13, 2022
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2021
77
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 benefts 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 Offce
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 pay-
ments from a different arm of the Federal Government, the Defense
Finance and Accounting Service. Upon retirement, Babcock applied to
the Social Security Administration for benefts. The agency granted
Babcock benefts but applied a statutory “windfall elimination provi-
sion” and reduced the amount of benefts to refect Babcock's receipt of
civil-service pension payments for his work as a technician. Babcock
sought reconsideration, arguing that the reduction should not apply be-
cause the pension payments at issue fell within a statutory exception
for 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 fling suit in federal court.
The District Court upheld the agency's decision, and the Sixth Circuit
affrmed.
Held: Civil-service pension payments based on employment as a dual-
status military technician are not payments based on “service as a mem-
ber of a uniformed service” under 42 U. S. C. § 415(a)(7)(A)(III).
Retirees receive Social Security benefts 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 separate pensions.
In response to this potential windfall, Congress modifed the formula to
reduce benefts when a retiree receives such a separate pension pay-
ment. But Congress left benefts unchanged if the pension payment
was “based wholly on service as a member of a uniformed service.”

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ABCOCK v. KIJAKAZI
Syllabus
§ 415(a)(7)(A)(III). The National Guard of the United States is defned
as
a uniformed service, § 410(m), so whether the uniformed-services ex-
ception applies depends on whether Babcock's technician work was serv-
ice “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 defnes the role, capacity, or function in which a techni-
cian 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 pensions
under Title 5 of the U. S. Code, which governs the pay and benefts of
civil servants. See 5 U. S. C. § 2101. Looking to the broader statutory
context, technicians possess characteristically civilian rights to seek re-
dress for employment discrimination and to receive workers' compensa-
tion, disability benefts, and compensatory time off for overtime 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 qualifcations, duties, and dress code render it func-
tionally indistinguishable from National Guard service, and that the
Court should interpret “as” more loosely to capture payments for “serv-
ice [in the likeness of or the same as] a member of a uniformed service.”
But the Court fnds no reason to adopt a meaning of “as” other than the
most natural one, particularly when Babcock's functional test is incon-
sistent with the statutory scheme. Determining whether Babcock's
employment was service “as” a member of the National Guard does not
turn on factors like whether he wore his uniform to work but rather on
how Congress classifed the position. Congress' civilian classifcation of
dual-status technicians for “bookkeeping ” purposes controls when it
comes to pay and benefts. Pp. 82–85.
959 F. 3d 210, affrmed.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Breyer, Alito, Sotomayor, Kagan, and Kava-
naugh, JJ., joined. Gorsuch, J., fled a dissenting opinion, post, p. 85.

Cite
as: 595 U. S. 77 (2022)
79
Opinion of the Court
Neal Kumar Katyal argued the cause for petitioner.
W
ith him on the briefs were Jessica L. Ellsworth, Kirti
Datla, Reedy C. Swanson, Ronald M. Bahrie, Justin M.
Bahrie, and Nicholas A. Kipa.
Nicole Reaves argued the cause for respondent. With her
on the brief were Acting Solicitor General Prelogar, Acting
Assistant Attorney General Boynton, Deputy Solicitor Gen-
eral Kneedler, Alisa B. Klein, and Sushma Soni.*
Justice Barrett delivered the opinion of the Court.
The Social Security Act generally reduces the benefts 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 benefts 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 formula
originally did not count earnings from jobs exempt from So-
cial Security taxes, so it calculated artifcially low earnings
for retirees who spent part of their careers in those jobs.
*Melanie L. Bostwick and Eric A. Shumsky fled a brief for the Na-
tional Veterans Legal Services Program et al. as amici curiae urging
reversal.
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ABCOCK v. KIJAKAZI
Opinion of the Court
As a result, those retirees received an artifcially high
percent
age of their calculated earnings in Social Security
benefts—plus, in many cases, payments from separate
pensions to boot.
Congress responded to this “windfall” by modifying the
formula to reduce benefts 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 payments, in-
cluding “a payment based wholly on service as a member
of a uniformed service.” Social Security Independence 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 pen-
sions based on uniformed service do not trigger a reduction
in Social Security benefts.
This case concerns the application of the windfall elimina-
tion provision to a unique position in federal employment:
the “military technician (dual status).” 10 U. S. C. § 10216.
As its name suggests, this rare bird has characteristics of
two different statuses. On one hand, the dual-status techni-
cian is a “civilian employee” engaged in “organizing, adminis-
tering, 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 employment to maintain
membership in the [National Guard]” and must wear a uni-
form 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 compensa-
tion. 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 System pen-
sion payments from the Offce of Personnel Management.
See 5 U. S. C. §§ 2101, 8332(b)(6); 42 U. S. C. § 410(a)(6)(A)
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as: 595 U. S. 77 (2022)
81
Opinion of the Court
(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 re-
ceive military pay and pension payments from a different
arm of the Federal Government, the Defense Finance and Ac-
counting 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 Michigan
Army National Guard. Like all dual-status technicians,
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
fying helicopters.
After retiring, Babcock applied to the Social Security Ad-
ministration for benefts. The agency granted his applica-
tion but determined that his civil-service pension payments,
which he received for his work as a civilian technician, trig-
gered the windfall elimination provision. So the agency
applied the modifed formula to reduce his Social Security
benefts by about $100 per month. Babcock sought reconsid-
eration, arguing that his pension payments fell within the
uniformed-services exception and so should not trigger this
reduction in benefts. The agency denied reconsideration,
and an Administrative Law Judge and the agency's Appeals
Council upheld the decision.
Babcock then sued in federal court. The District Court
upheld the agency's decision. The Sixth Circuit affrmed,
1
Technicians hired since 1984, like other federal civil servants hired
after that point, do not receive a Civil Service Retirement System pension.
See 42 U. S. C. § 410(a)(5)(B)(i).
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ABCOCK v. KIJAKAZI
Opinion of the Court
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. Babcock
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 benefts based on his pension for
technician employment. The dispute is narrow: All agree
that Babcock's separate military pension for his National
Guard service does not trigger the windfall elimination pro-
vision. 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 tech-
nician work avoids triggering the provision's reduction in
benefts because it falls within the exception for “a payment
based wholly on service as a member of a uniformed service.”
42 U. S. C. § 415(a)(7)(A)(III). The answer depends on
whether Babcock's technician work was service “as” a mem-
ber of the National Guard. See § 410(m) (defning “member
of a uniformed service” to include a member of a “reserve
component” as defned 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. Commis-
sioner 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 frst time in this Court, the Government argues that Babcock's
claim fails for the independent reason that the State National 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 Government's alter-
native argument, which was neither pressed nor passed upon below. See
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as: 595 U. S. 77 (2022)
83
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 Her-
itage Dictionary 106 (3d ed. 1992); see also 1 Oxford English
Dictionary 674 (2d ed. 1989) (“[i]n the character, capacity,
or rôle of ”). And the role, capacity, or function in which a
technician serves is that of a civilian, not a member of the
National Guard. The statute defning 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 apparent
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 benefts, and compensatory
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 signifcant in the
context of retirement benefts, 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 benefts
of civil servants. See 5 U. S. C. § 2101. These provisions
demonstrate that Congress consistently distinguished techni-
cian 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
Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per cu-
riam) (“ `[T]his is a court of fnal review and not frst view' ”).
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ABCOCK v. KIJAKAZI
Opinion of the Court
elimination provision. Nor are we moved by Babcock's ar-
g
ument 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 employ-
ment is not the same as the capacity in which one serves.
If a private employer hired only moonlighting police offcers
to be security guards, one would not call that employment
“service as a police offcer.” So too here: the fact that the
Government hires only National Guardsmen to be techni-
cians 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 satisfes this functional test, Babcock says,
because whatever its classifcation, the job's qualifcations,
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
Petitioner 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 argua-
bly analogous “status”) in other provisions and did not do so
in the uniformed-services exception. See, e. g., 32 U. S. C.
§ 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
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Cite
as: 595 U. S. 77 (2022)
85
Gorsuch, J., dissenting
the same theme to distinguish between service in different
capacities.
More
importantly, though, Babcock's functional test is
inconsistent with the choices that Congress made in the stat-
utory scheme. Determining whether Babcock's techni-
cian employment was service “as” a member of the Na-
tional Guard does not turn on factors like whether he wore
his uniform to work. It turns on how Congress classifed
the job—and as already discussed, Congress classifed dual-
status technicians as “civilian.” Babcock dismisses that dis-
tinction as one drawn for purposes of “administrative book-
keeping,” but bookkeeping matters when it comes to pay
and benefts.
***
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 affrm the judgment of the Court of Appeals.
It is so ordered.
Justice Gorsuch, dissenting.
As the only dissenter on this narrow question of statutory
interpretation, I confess trepidation. Still, I cannot help but
fnd 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 80. 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
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ABCOCK v. KIJAKAZI
Gorsuch, J., dissenting
“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 discharge 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 technicians “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 offcers moonlighting as
private security guards. Ante, at 84. But to my mind dual-
status technicians are more like part-time police offcers em-
ployed in their outside hours by the same police department
to train recruits, administer the precinct offce, and repair
squad cars—all on the condition that they wear their police
uniforms and maintain their status as offcers. I suspect
most reasonable offcers in that situation would consider 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 repre-
sent “service as . . . member[s]” of the National Guard. I
would honor that reasonable understanding and would not
curtail servicemembers' Social Security benefts based pri-
marily on implications extracted from other, separate “book-
keeping ” statutes. Ante, at 85.
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