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Justices to consider Social Security benefits of National Guard workers

Wednesday’s argument in Babcock v Kijakazi will take the justices deep into the intersection of the Social Security Act and a host of statutes defining the obligations and compensation of National Guard workers. This will definitely not be the most closely watched case of the month — but the court’s resolution of the arcane question in the case may determine how much money certain veterans can receive in retirement benefits.

At the highest level of generality, the case involves an exception from a “windfall elimination provision” of the Social Security Act. To understand the issues before the justices, it is enough to know that Congress has adopted a statute designed to eliminate what it regards as “windfalls” that some workers would receive – unjustly large Social Security awards that would flow to workers who spent a substantial share of their working years in jobs not covered by Social Security. The exception to the windfall-elimination provision describes some payments to which that provision doesn’t apply – employees for whom Congress would tolerate what it generally would regard as a windfall. Specifically, the exception protects any “payment based wholly on service as a member of a uniformed service,” a defined term that includes among other things the Army National Guard of the United States. To put that another way, the “uniformed-services exception” at issue here allows members of uniformed services a windfall Social Security payment that is barred for members of the general public.

The question before the court is whether the benevolence of that uniformed-services exception reaches dual-status military technicians who serve in the National Guard. Those technicians provide a variety of services involving the equipment and supplies of the National Guard. Although they are paid as civilian employees, they routinely wear military uniforms and are obligated to maintain membership with an appropriate rank in the state National Guard where they are located, which carries with it (by law) membership in the Army National Guard of the United States.

David Babcock, who worked for nearly 34 years as a dual-status technician in the Michigan National Guard, strives to present a simple and linear textual argument. First, all agree that the Army National Guard (and the parallel Air National Guard) is a “uniformed service” as defined for purposes of the uniformed-services exception. Second, Babcock argues that dual-status technicians work “as” a member of that service because, among other things, they are obligated by statute to be a member of that service and wear its uniform. Therefore, Babcock reasons, payments for that work are payments “based wholly on” that service. Although it is of course not relevant to his legal argument, it may influence some of the justices that Babcock is a highly decorated veteran who served in Iraq with distinction.

The government argues that dual-status technicians perform services in a variety of capacities, working sometimes in their status as civilian employees, sometimes in their status as members of the state’s National Guard, and occasionally (if called up for active service) as members of the Army National Guard of the United States. Because those technicians work in so many roles, and because they necessarily perform work in the non-federalized capacity, any payments they receive are not based “wholly” on work “as” a member of the federalized uniformed service.

The government buttresses that textual argument with two general themes that pervade its brief. First, and most pervasively, its brief repeatedly emphasizes the civilian employment classification of the dual-status technician. To be clear, the government does not deny that the technicians are, and are required at all times to be, members of the relevant “uniformed service”; they just press an apparent incongruity in treating “civilian” employees as members of a uniformed service (passing over the more obvious incongruity of excluding from “uniformed” service a group obligated by federal statute to “wear the uniform” of the applicable military unit).

Second, the government’s summary of the history of the uniformed-services exception highlights a series of House reports and contemporaneous administrative pronouncements articulating quite a narrow understanding of the exception. The government does not directly argue that the legislative history would govern here – so far as I can tell it seems to be all but impossible to reconcile the understanding of the legislative history with the text of the statute. But the narrative does have the effect of explaining the government’s resistance to the claims of the technicians for statutory coverage.

I doubt this case will rile the justices or detain them long. As Supreme Court cases go, the amounts at stake are small, and implications for future disputes are unlikely. My guess is that most of them will come to the argument with a pre-disposition to accept one or the other of the statutory readings as more persuasive than the other, and if a strong majority is leaning in the same direction that is likely to be the end of the matter. We’ll know more on Wednesday.

Recommended Citation: Ronald Mann, Justices to consider Social Security benefits of National Guard workers, SCOTUSblog (Oct. 12, 2021, 10:56 AM),