Babcock v. Kijakazi

Summary

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).

Text

PRELIMINARY PRINT 
Volume 595 U. S. Part 1 
Pages 77–86 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
January 13, 2022 
REBECCA A. WOMELDORF 
reporter of decisions 
Page Proof Pending Publication
NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

Page Proof Pending Publication
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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78 BABCOCK 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. 
With 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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80 BABCOCK v. KIJAKAZI 
Opinion of the Court 
As a result, those retirees received an artifcially high 
percentage 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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Cite 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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82 BABCOCK 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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Cite 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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84 BABCOCK v. KIJAKAZI 
Opinion of the Court 
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 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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86 BABCOCK 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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Page Proof Pending Publication
Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
None

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 595 U. S. Part 1 Pages 77–86 OFFICIAL REPORTS OF THE SUPREME COURT January 13, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to not…

• #2

  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 wh…

• #3

  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 …

• #4

  (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. …

• #5

  See 5 U. S. C. §§ 2101, 8332(b)(6); 42 U. S. C. § 410(a)(6)(A) Page Proof Pending Publication Cite 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 de…

• #6

  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 se…

• #7

  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 wor…

• #8

  “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 cla…

• #9

  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. …

• #10

  makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of …