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Judges Barrett and Gorsuch clash over military pensions

Judges Barrett and Gorsuch clash over military pensions

United States Supreme Court denied certain military veterans a chance for higher retirement benefits in a nearly unanimous opinion of Justice Amy Comey Barrett on Thursday. justice Neil Gorsuch opposed the 8-1 majority and would have allowed a subset of veterans to recoup more Social Security funds after their service ended.

stylized as Babcock v. Kijakazi, the case revolves around the Social Security Act’s so-called “windfall elimination provision,” a statute designed by Congress to reduce Social Security benefits for retirees who receive separate retirement payments. Such retirees would otherwise receive, according to Congress, a “windfall” from the Social Security Administration based on how the system originally counted earnings for employees in jobs exempt from Social Security taxes.

However, in amending the law, Congress exempted certain forms of retirement payments from activating the windfall exemption. One category of pensions that receive preferential treatment is described in the law as “a payment based wholly on service as a member of a uniformed service.” Or, to put it another way, Congress passed a section of law that allows: some military veterans to receive “windfall” Social Security benefits that are not open to the public.

But the exception clearly doesn’t cover all of them military veterans, and therein lies the controversy that has been decided by the court.

the submitter, David Babcock, spent 33 years as a dual-status technician in the Michigan Army National Guard as a full-time test pilot and pilot instructor. To complete the dual nature of his work, he also compulsorily served as a member of the National Guard, conducting training and exercises. He was eventually deployed to Iraq for a year.

This dual role means that technicians perform work in two separate capacities that yield different forms of compensation. First, they work full-time as technicians in a civilian capacity. For this work they receive a civil servant salary and, if employed before 1984, pension benefits from the Civil Servant Pension Scheme of the Office of Personnel Management. [A footnote helpfully points out that Civil Service pensions are now all-but extinct animals.] Second, as members of the National Guard, they participate in part-time exercises, training and (sometimes) active deployment. For this work, they receive military wages and pensions from another branch of the federal government, the Defense Finance and Accounting Service.

Babcock applied for Social Security benefits himself after retiring in 2009. He got the benefits from the SSA, but the agency decided the windfall waiver was caused by his citizen pension, and his payments were reduced by about $100 a month. He filed a lawsuit arguing that his job as a dual-status technician for the National Guard should have entitled him to the waiver from uniformed service. Several lower courts disagreed, and the state court took the case to resolve a circuit split.

Judge Barrett described the question in the case in candid terms: “The only question is whether Babcock’s civil servant pension for technician work avoids the provision being reduced in benefits because it falls under the exception for ‘a payment based entirely on service as member’. of a uniformed service.”

Most of the opinion’s argument is devoted to a discussion of what the word “if” means in the context of the statute – and boils down to a textual, clear-cut meaning of “[i]n the role, capacity or function of.”

Leaving aside another argument about how the nature of his dual-status work requires uniformed work for the National Guard, the court’s latest judge offered an analogy that she and most of her colleagues believe best suited the facts of the matter:

Nor are we moved by Babcock’s argument that the legal requirement for technicians to maintain membership in the National Guard counts all the work they do as watchkeeping. An employment condition is not the same as the capacity in which one is employed. If a private employer only hires police officers as security guards, that employment would not be called “police officer duty.” Likewise here, the fact that the government only hires National Guard soldiers as technicians doesn’t eliminate the distinction between the two jobs.

Gorsuch, in his brief and lonesome dissent, confesses to being “timid” at being the only vote against the majority, but the judge said he “can find the petitioner’s arguments persuasive”.

The logic of the dissent is quite simple and, perhaps surprisingly, not really textually not at all.

“Dual status military technicians have ‘a unique position in federal employment,'” he said. “Not only do they sometimes serve on active duty, as the petitioner did. By law, they spend the rest of their time working for the Garde — on things ranging from educating others to administration to equipment maintenance. They must “maintain membership” in the National Guard at all times and wear a Guard uniform while on duty. The power to dismiss or discipline these persons also rests with the Adjutant General. Given these characteristics of their work, I would consider that dual status technicians ‘serv[e] as members of the National Guard in all the work they do for this country day in and day out.”

Gorsuch goes on to dismiss the moonlight analogy:

[T]o In my view, dual status technicians are more like part-time police officers deployed outside of working hours by the same police force to train recruits, run the police station and repair patrol cars – all provided they wear their police uniform and their status as an officer. I suspect most reasonable officers in that situation would regard the entirety of their work as “service as . . . member[s]’ from the police. So here again, I expect that most Guardsmen serving as “dual status technicians” – who come to work for the Guard every day, in a Guard uniform and subject to Guards discipline – would view all of their work as “serving as … member.”[s]of the National Guard. I would respect that reasonable understanding and would not curtail service worker Social Security benefits based primarily on implications drawn from other, separate “accounting laws.”

Finally, the majority focuses directly on the unified argument – with a recall to the text of the statute, perhaps a jab at the dissent to leave the text behind.

“Determining whether Babcock’s tenure as a technician was service ‘as’ a member of the National Guard does not depend on factors such as whether he wore his uniform to work,” explains Barrett. “It’s about how Congress classified the job – and as already discussed, Congress classified technicians with two statuses as ‘civilian’. Babcock dismisses that distinction as one made for “administrative accounting” purposes, but accounting matters when it comes to pay and benefits.

[images via Getty Images]

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