Petition for Writ of Certiorari — David Bryon Babcock, Petitioner v. Kilolo Kijakazi, Acting Commissioner of Social Security

No. 20IN THE

Supreme Court of the United States

_________

DAVID BABCOCK,

Petitioner,

v.

COMMISSIONER OF SOCIAL SECURITY,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

JUSTIN M. BAHRIE

NICHOLAS A. KIPA

BAHRIE LAW, PLLC

6810 S. Cedar St., Ste. 2C

Lansing, MI 48911

NEAL KUMAR KATYAL

Counsel of Record

KIRTI DATLA

BENJAMIN A. FIELD

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

Counsel for Petitioner

QUESTION PRESENTED

Dual-status military technicians in the National

Guard are members of the National Guard. They

serve in uniform, observe military protocol, are

required to maintain a military grade appropriate for

their role, and are available for active deployment

with their unit. A provision of the Social Security

Act exempts payments from adverse treatment if

they are “a payment based wholly on service as a

member of a uniformed service.”

42 U.S.C.

§ 415(a)(7)(A)(III).

The question presented, which has divided five

Courts of Appeals, is:

Is a civil-service pension payment based on dualstatus military technician service to the National

Guard a payment based wholly on service as a member of a uniformed service?

(i)

ii

PARTIES TO THE PROCEEDING

David Babcock, petitioner on review, was the plaintiff-appellant below.

The Commissioner of Social Security, respondent

on review, was the defendant-appellee below.

iii

RELATED PROCEEDINGS

U.S. Court of Appeals for the Sixth Circuit:

Babcock v. Commissioner, No. 19-1687

(6th Cir. May 11, 2020) (reported at 959 F.3d

210)

U.S. District Court for the Western District of

Michigan:

Babcock v. Commissioner, No. 1:18-cv-255

(W.D. Mich. May 22, 2019) (unreported) (order

adopting report and recommendation)

Babcock v. Commissioner, No. 1:18-cv-255

(W.D. Mich. Dec. 4, 2018) (unreported) (report

and recommendation)

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDING ............................ ii

RELATED PROCEEDINGS ......................................iii

TABLE OF AUTHORITIES ....................................... vi

INTRODUCTION ........................................................ 1

OPINIONS BELOW .................................................... 3

JURISDICTION .......................................................... 3

STATUTORY PROVISIONS INVOLVED ................. 4

STATEMENT .............................................................. 4

A.

Statutory Background .............................. 4

B.

Factual Background ................................. 6

REASONS FOR GRANTING THE PETITION ....... 10

I.

THERE IS A CLEAR, DEEP SPLIT

ON THE QUESTION PRESENTED ............. 10

II.

THIS PETITION IS A CLEAN

VEHICLE TO RESOLVE THIS

IMPORTANT

QUESTION

OF

STATUTORY INTERPRETATION ............... 15

III. THE DECISION BELOW IS WRONG .......... 17

CONCLUSION .......................................................... 23

APPENDIX

APPENDIX A—Sixth Circuit’s Opinion

(May 11, 2020) ................................................... 1a

APPENDIX B—District Court’s Order

Adopting Magistrate Judge’s Report

and Recommendation (May 22, 2019) ............ 17a

v

TABLE OF CONTENTS—Continued

Page

APPENDIX C—Magistrate Judge’s Report

and Recommendation (Dec. 4, 2018) .............. 23a

APPENDIX D—Social Security Administration Office of Disability Adjudication and Review Hearing Transcript

(Sept. 15, 2016) ................................................ 32a

APPENDIX E—Mr. Babcock’s Certificate

of Release or Discharge from Active

Duty ................................................................. 48a

APPENDIX F—Statutory Provisions Involved ............................................................... 54a

vi

TABLE OF AUTHORITIES

Page(s)

CASES:

Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008)................................................. 20

Barnhart v. Sigmon Coal Co.,

534 U.S. 438 (2002)................................................. 20

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004)................................................. 17

Christensen v. Harris County,

529 U.S. 576 (2000)................................................. 12

Commissioner v. Clark,

489 U.S. 726 (1989)................................................. 22

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992)................................................. 17

Fisher v. Peters,

249 F.3d 433 (6th Cir. 2001) .................................. 18

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ............................................ 20

Kientz v. Commissioner,

954 F.3d 1277 (10th Cir. 2020) .................. 14, 19, 20

Larson v. Saul,

967 F.3d 914 (9th Cir. 2020) .......................... passim

Martin v. Soc. Sec. Admin., Comm’r,

903 F.3d 1154 (11th Cir. 2018) .................. 9, 12, 13

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) .............................................. 22

Mier v. Owens,

57 F.3d 747 (9th Cir. 1995) .................................. 18

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Petersen v. Astrue, No. 4:08CV3178, 2009 WL

995570 (D. Neb. Apr. 14, 2009), aff’d, 633

F.3d 633 (8th Cir. 2011) ....................................... 18

Petersen v. Astrue,

633 F.3d 633 (8th Cir. 2011) ........................ passim

Wood v. United States,

968 F.2d 738 (8th Cir. 1992) ................................ 18

STATUTES:

National Defense Authorization Act for Fiscal

Year 1996,

Pub. L. No. 104-106, 110 Stat. 186 ........................ 16

National Defense Authorization Act for Fiscal

Year 2006,

Pub. L. No. 109-163, 119 Stat. 3136 ...................... 16

National Guard Technicians Act of 1968,

Pub. L. No. 90-486, 82 Stat. 755 .............................. 6

Pub. L. No. 98-21, 97 Stat. 65 (1983) .......................... 5

Social Security Independence and Program

Improvements Act of 1994,

Pub. L. No. 103-296, 108 Stat. 1464 ........................ 5

10 U.S.C. § 115 note .................................................. 16

10 U.S.C. § 10216 ........................................................ 6

10 U.S.C. § 10216(a)(2) ............................................... 7

10 U.S.C. § 10216(a)(3) ............................................... 7

10 U.S.C. § 10216(a)(3)(A)........................................... 7

10 U.S.C. § 10216(a)(3)(B)........................................... 7

viii

TABLE OF AUTHORITIES—Continued

Page(s)

10 U.S.C. § 10216(b)(3) ............................................... 7

10 U.S.C. § 10217 ...................................................... 18

28 U.S.C. § 1254(1) ...................................................... 4

32 U.S.C. § 709(a)(1) ................................................... 7

32 U.S.C. § 709(a)(2) ................................................... 7

32 U.S.C. § 709(a)(3) ................................................... 7

32 U.S.C. § 709(b) ...................................................... 18

32 U.S.C. § 709(b)(2) ................................................... 7

32 U.S.C. § 709(b)(3) ................................................... 7

32 U.S.C. § 709(b)(4) ................................................... 7

32 U.S.C. § 709(c) ...................................................... 18

32 U.S.C. § 709(e) ........................................................ 7

32 U.S.C. § 709(f)(1)(A) ............................................... 7

32 U.S.C. § 709(f)(1)(B) ............................................... 7

38 U.S.C. § 101(27)(F) ................................................. 6

42 U.S.C. § 402 ............................................................ 5

42 U.S.C. § 410(m)....................................................... 6

42 U.S.C. § 415 ........................................................ 4, 5

42 U.S.C. § 415(a)(7)(A) .......................................... 2, 5

42 U.S.C. § 415(a)(7)(A)(III) .............................. passim

42 U.S.C. § 415(a)(7)(B) .............................................. 5

RULE:

Sup. Ct. R. 10............................................................. 15

ix

TABLE OF AUTHORITIES—Continued

Page(s)

ADMINISTRATIVE MATERIAL:

SSAR 12-X(8),

77 Fed. Reg. 51,842 (Aug. 27, 2012) .......... 9, 15, 21

LEGISLATIVE MATERIALS:

H.R. Conf. Rep. No. 103-670 (1994) ............................ 5

H.R. Rep. No. 90-1823 (1968), reprinted at

1968 U.S.C.C.A.N. 3318......................................... 7

H.R. Rep. No. 103-506 (1994)................................ 5, 16

OTHER AUTHORITIES:

POMS RS 00605.370(B)(2) WEP Guarantee,

Social Security Administration (Apr. 17,

2003), available at https://bit.ly/34Njfpt............... 21

Program Explainers: Windfall Elimination

Provision (WEP Explainer), Social Security

Administration (Nov. 2015),

http://bit.ly/ssawindfall............................................. 4

IN THE

Supreme Court of the United States

_________

No. 20_________

DAVID BABCOCK,

Petitioner,

v.

COMMISSIONER OF SOCIAL SECURITY,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

David Babcock respectfully petitions for a writ of

certiorari to review the judgment of the Sixth Circuit

in this case.

INTRODUCTION

For over three decades, David Babcock worked as a

full-time dual-status military technician, functioning

in every way like his active-duty peers. As a condition of his employment, he maintained membership

in the National Guard. He served as a pilot and also

as an instructor, training others in how to fly military craft. And he observed military protocol, wore a

uniform showing his rank, and was deployed on

active duty to Iraq with his National Guard unit.

(1)

2

Yet when Babcock retired, the Social Security Administration (SSA) declined to view those thirty-plus

years as uniformed service. When calculating social

security benefits, the SSA applies a modified formula, the Windfall Elimination Provision (WEP). When

a person receives retirement payments from a job at

which he did not pay into Social Security—as is

typical for public sector employees who pay into a

separate pension system—the provision reduces his

Social Security benefits to account for those other

payments. See 42 U.S.C. § 415(a)(7)(A). The WEP

does not require that reduction, however, if the

person is receiving “a payment based wholly on

service as a member of a uniformed service * * * .”

42 U.S.C. § 415(a)(7)(A)(III). When serving as a

dual-status technician, Babcock paid into the Civil

Service Retirement System (CSRS) rather than

Social Security. The SSA concluded that the WEP

applied to Babcock, reasoning that his CSRS pension

payment was not “based wholly on service as a

member of a uniformed service,” though his eligibility for that pension turned wholly on his time as a

dual-status technician, because dual-status technicians are classified as civilian employees of the

armed services.

The federal courts of appeals are intractably split

on whether the text of the Social Security Act can

bear the SSA’s counterintuitive interpretation. The

Eighth Circuit has held that the exception unambiguously applies to dual-status technicians’ civilservice pension payments. The Ninth and Eleventh

Circuits both found the text unclear and deferred to

the SSA’s view. And the Sixth Circuit below, along

3

with the Tenth Circuit, both hold that the text clearly favors the SSA. If Babcock lived in Minnesota, he

would receive the benefit of the WEP exception, but

because he lives in Michigan, he does not.

This Court should grant review to resolve the split

and end this arbitrary treatment of our veterans.

Since Congress created the dual-status technician

role in 1968, tens of thousands of people have served

in the military’s reserve components each year.

When it comes time to retire, those dual-status

technicians who live outside of the Eighth Circuit

receive lower Social Security benefits than their

counterparts in neighboring states. Those veterans

are deprived a benefit Congress plainly meant to

confer because the statute’s text is clear that all

dual-status military technicians fall within the WEP

exception for those who served our Nation in the

uniformed services. The Court should grant the

petition and reverse.

OPINIONS BELOW

The Sixth Circuit’s opinion is reported at 959 F.3d

210. Pet. App. 1a-16a. The Magistrate Judge’s

report and recommendation to affirm the SSA’s

decision is unreported, id. at 23a-31a, and the District Court’s order adopting the report and recommendation and affirming the SSA’s decision is unreported, id. at 17a-22a.

JURISDICTION

The Sixth Circuit entered judgment on May 11,

2020. Pet. App. 1a-16a. On March 19, 2020, the

Court issued an order that extended the time for

filing a petition for a writ of certiorari to 150 days

4

from the date of the lower court’s denial of a timely

petition for rehearing, thus to and including October

8, 2020. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Social Security Act

and the principal statutes governing National Guard

technicians are reproduced in the appendix to this

petition. Pet. App. 54a-70a.

STATEMENT

A. Statutory Background

The Social Security Act divides a retiree’s employment into covered and uncovered positions. In a

covered position, a person pays Social Security taxes

on the income. In an uncovered position, a person

does not. Pet. App. 8a-9a. Public sector employees

often hold uncovered positions and pay into a separate employer-run pension system instead of Social

Security. Id.; see also Program Explainers: Windfall

Elimination Provision (WEP Explainer), Social

Security

Administration

(Nov.

2015),

http://bit.ly/ssawindfall.

A person’s Social Security payment is calculated as

a percentage of pre-retirement income earned from

covered employment. See 42 U.S.C. § 415. The

formula used to calculate that benefit is progressive.

Those with lower lifetime earnings receive a higher

proportion of their earnings back as a benefit than

those with higher lifetime earnings. Pet. App. 8a-9a.

This progressive formula favored people who had

held both a covered position, with income that count-

5

ed toward the lifetime earnings, and an uncovered

position, with income that did not count. Because

the income from the uncovered position was removed

from the picture, the person’s lifetime earnings are

lowered and the formula produces a proportionately

higher benefit. At the same time, the person may

receive retirement payments from their uncovered

position. See id.

Congress enacted the Windfall Elimination Provision in 1983 to address this situation. The WEP

applies to people who receive Social Security benefits

based on covered work and retirement benefits from

uncovered work. See id. at 9a (citing Pub. L. No. 9821, § 113(a), 97 Stat. 65 (1983) (codified at 42 U.S.C.

§ 415)). Its formula reduces benefits to partially

offset the pension or annuity payments from uncovered work. See id.; see also 42 U.S.C. § 415(a)(7)(A)(B).

When enacted, the WEP lowered benefits for people

who received military pensions based on income from

service not covered by Social Security. See H.R.

Conf. Rep. No. 103-670, at 125 (1994). Congress

considered that result “inequitable.” H.R. Rep. No.

103-506, at 67 (1994). And so it enacted an exemption from the WEP for these pension payments. See

Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296,

§ 308(a)-(b), 108 Stat. 1464 (codified at 42 U.S.C.

§§ 402, 415).

That exemption is known as the uniformed-services

exception. It exempts from the WEP any “payment

based wholly on service as a member of a uniformed

service.” 42 U.S.C. § 415(a)(7)(A)(III). Through a

6

series of cross-references, a member of a uniformed

service is defined to include a member of a reserve

component of the U.S. Air Force and Army National

Guards. See id.; id. § 410(m); 38 U.S.C. § 101(27)(F).

B. Factual Background

1. David Babcock served as a full-time pilot and

pilot instructor in the National Guard for over three

decades. Pet. App. 2a. He joined the Michigan

National Guard in 1970 as an enlisted soldier. Id.

After attending flight school and becoming a licensed

pilot, he became an officer and a pilot for the U.S.

Army National Guard in 1975, serving until 2009.

Id.; see also id. at 17a-18a. During his service,

Babcock received numerous decorations, including

the Bronze Star, Army Achievement Medal, and

Global War on Terrorism Expeditionary Medal. Id.

at 50a.

Babcock’s position was a “military technician (dualstatus),” 10 U.S.C. § 10216, commonly called a dualstatus military technician. See Pet. App. 2a. Congress created the dual-status technician role to make

full-time National Guard technicians federal employees while they served in and supported their state

National Guard. See Larson v. Saul, 967 F.3d 914,

924 (9th Cir. 2020) (discussing the National Guard

Technicians Act of 1968, Pub. L. No. 90-486, 82 Stat.

755). This role is “dual-status” because although

technicians serve in the military, they are classified

for certain purposes as civilian employees.

As to the military side, dual-status technicians

must be “a member of the National Guard,” “[h]old

the military grade specified * * * for that position,”

and “wear the uniform appropriate for the member’s

7

grade and component.” 32 U.S.C. § 709(b)(2)-(4). If a

technician “is separated from the National Guard or

ceases to hold the military grade specified * * * for

that position,” then he “shall be promptly separated

from” his “employment.” 32 U.S.C. § 709(f)(1)(A)-(B).

Dual-status technicians are responsible for, among

other things, “organizing, administering, instructing,

or training of the National Guard.” 32 U.S.C.

§ 709(a)(1)-(2); see also 10 U.S.C. § 10216(a)(3)(A)(B). They may also be called upon for “[s]upport of

operations or missions undertaken by the technician’s unit at the request of the President or the

Secretary of Defense”; “[s]upport of Federal training

operations”; and instructing or training “active-duty

members of the armed forces,” “members of foreign

military forces,” or Department of Defense personnel.

32 U.S.C. § 709(a)(3); see also 10 U.S.C.

§ 10216(a)(3). In short, dual-status technicians are

part of an “organization organized and operated

along military lines.” H.R. Rep. No. 90-1823 (1968),

reprinted at 1968 U.S.C.C.A.N. 3318, 3332.

As to the civilian side, dual-status technicians are

deemed to be a “separate category” of “Federal civilian employee.” 10 U.S.C. § 10216(a)(2). They are

employees of “the Department of the Army or the

Department of the Air Force” and “of the United

States.” 32 U.S.C. § 709(e). But they are “outside

the competitive service,” id.—the standard service

for federal civil servants. And they are “exempt from

any requirement * * * for reductions in Department

of Defense civilian personnel and shall only be reduced as part of military force structure reductions.”

10 U.S.C. § 10216(b)(3).

8

Babcock’s tenure as a dual-status technician reflected these dual features. While on duty, he functioned just like active-duty personnel on post. He

wore a uniform showing his rank and National

Guard unit. He attended mandatory weekend National Guard drills. Pet. App. 2a-3a. He was available to support any operation or mission undertaken

by his unit. And he served an active-duty deployment to Iraq between 2004 and 2005. Id. at 3a.

Because he was classified as a civilian employee, he

participated in the CSRS and, when he retired from

the National Guard in 2009, received monthly CSRS

payments. Id.1

Babcock did not fully retire after he left the National Guard. He worked for several years flying

medical-evacuation helicopters for private hospitals.

Id. at 3a-4a. Those earnings were covered by Social

Security. Id. at 4a.

2. When Babcock retired fully in 2014, he applied

for Social Security retirement benefits and listed his

CSRS pension payments in his application. Id.

In granting his application, the SSA concluded that

his CSRS payments triggered the WEP and applied

it to reduce his benefits. Id. at 4a-5a. Babcock filed

an administrative appeal and argued that the uniformed-services exception applied because his CSRS

pension was based wholly on uniformed service in

the National Guard. Id. at 5a. The Eighth Circuit—

then the only circuit court to address the question—

1

Babcock received separate military retirement payments not

at issue here. Pet. App. 3a-4a.

9

had held that dual-status technicians were exempted

from the WEP by the uniformed-services exception.

See Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011).

However, the SSA applied that ruling only in the

Eighth Circuit. See SSAR 12-X(8), 77 Fed. Reg.

51,842 (Aug. 27, 2012). The SSA thus denied Babcock’s administrative appeal. Pet. App. 5a.

3. Babcock sought review of the SSA’s application

of the WEP to his CSRS pension. Id. By then, the

Eleventh Circuit had disagreed with the Eighth

Circuit’s interpretation of the uniformed-services

exception. See Martin v. Soc. Sec. Admin., Comm’r,

903 F.3d 1154, 1168 (11th Cir. 2018) (per curiam)

(holding that the uniformed-services exception does

not apply to dual-status military technicians’ CSRS

payments). The Magistrate Judge recommended

that the District Court adopt the Eleventh Circuit’s

interpretation of the uniformed-services exception.

Pet. App. 23a-30a. The District Court agreed with

that recommendation and affirmed the SSA’s decision on Babcock’s benefits application. Id. at 17a22a.

The Sixth Circuit affirmed. Pet. App. 2a, 16a.

After parsing dictionary definitions of wholly and as,

the court concluded that the requirement that payments be “based wholly on service as a member of a

uniformed service” meant that the “exception is

cabined to payments that are based exclusively on

employment in the capacity or role of a uniformedservices member.” Id. at 10a-11a. The court found

that Babcock’s CSRS pension payments did not fall

within that category because his dual-status employment was not exclusively in the capacity as a

10

uniformed-services member because it had elements

of civilian service too. Id at 11a-12a. The court

recognized it was joining a “circuit split” with the

Eighth Circuit, id. at 16a, but concluded that the

“plain text” of the uniformed-services exception

supported its interpretation, id. at 13a.

This petition followed.

REASONS FOR GRANTING THE PETITION

I. THERE IS A CLEAR, DEEP SPLIT ON THE

QUESTION PRESENTED.

This case presents a simple question of statutory

interpretation: Is a pension payment derived from

dual-status service in the National Guard “a payment based wholly on service as a member of a

uniformed service”? 42 U.S.C. § 415(a)(7)(A)(III).

The Eighth Circuit has held that the answer is yes.

The Sixth, Ninth, Tenth, and Eleventh Circuits have

held that the answer is no. See Larson, 967 F.3d at

920-921. Because of this unresolved disagreement,

National Guard veterans who served as dual-status

technicians receive different Social Security benefits

based on where they live.

1. The Eighth Circuit considered the question first

and concluded that “the meaning and intent of” the

uniformed-services exception “is clear and unambiguous” and does apply to dual-status military technicians. Petersen, 633 F.3d at 636. It rejected the

SSA’s interpretation, under which payments for

work as a dual-status technician were not “based

wholly on service as a member of a uniformed service” because dual-status technicians’ employment

had civilian aspects. Id. at 637 (internal quotation

11

marks omitted). The uniformed-services exception

“only requires that the service be as a member of the

uniformed service.” Id. at 637. The text lacked any

“requirement that the ‘service’ be only in a noncivilian or military duty capacity”; “[r]ather, the

plain language of the statute makes it abundantly

clear that the exception applies to all service performed as a member of a uniformed service.” Id.

The Eighth Circuit further explained that the

SSA’s interpretation would “read a ‘military duty’

requirement into the statute” that is nowhere in its

text. Id. The SSA offered a policy argument that

applying the plain-meaning interpretation could lead

to a “windfall in retirement benefits” for dual-status

military technicians. Id. That did not move the

court. The statute’s text required that result, and if

that was not what Congress intended, “the solution

is in a change to the WEP, not in a distorted reading

of the current statute.” Id. at 637-638.

The Eighth Circuit concluded that the claimant

there “m[et] the limited requirements of the” uniformed-services exception because the National

Guard is a “uniformed service” and his pension was

“based entirely on his service as a National Guard

technician.” Id. at 637.

2. The four other circuit courts that have addressed

this question disagreed with the Eighth Circuit’s

interpretation. Each acknowledged the circuit split.

See Larson, 967 F.3d at 920–921; see also Pet. App.

16a. But these courts have themselves split with one

another in offering rationales for their conclusion

that the uniformed-services exception does not apply

to dual-status National Guard technicians.

12

The Ninth and Eleventh Circuits found the text of

the uniformed-services exception to be unclear and

deferred to the SSA’s interpretation.

The Ninth Circuit found the uniformed-services

exception to be “ambiguous” and that it “can be read

differently” than “the SSA’s construction.” Larson,

967 F.3d at 924, 926. In its view, both interpretations “present a plausible interpretation of the

statute,” id. at 924, and both were subject to valid

criticisms, id. at 922–924. The court consulted

legislative history but concluded that it did “not

helpfully inform [its] reading” because it was “mostly

silent with respect to the pensions of dual-status

technicians.” Id. at 924.

Because the Ninth Circuit found the exception

ambiguous, it deferred to the SSA’s interpretation.

The court acknowledged that the SSA was not entitled to Chevron deference because it had not adopted

its interpretation in a form that carried the “force of

law,” like rulemaking. Id. at 925. (quoting Christensen v. Harris County, 529 U.S. 576, 587 (2000)).

Even so, the court deferred under Skidmore because

of the SSA’s “technical expertise in administering the

Social Security Act.” Id. at 926. In the Ninth Circuit’s view, it was enough that the SSA’s “preferred

interpretation of the uniformed-services provision is

at least a permissible construction of the statute” for

the agency’s interpretation to merit dispositive

deference. Id. (internal quotation marks omitted).

Similarly, the Eleventh Circuit acknowledged that

“the plain text of the [uniformed-services exception]

provision itself is not necessarily determinative.”

Martin, 903 F.3d at 1166. To resolve the meaning of

13

the exception, it used “the interpretive tools at [its]

disposal” and “account[ed] for * * * the deference we

have determined we owe the SSA’s interpretation

under Skidmore.” Id. at 1168. It held that it is not

enough that “dual status technician employment is

essentially military” because “it is not wholly military in nature.” Id. at 1166. That takes dual-status

technicians outside the scope of the exception, which,

in its view, does not apply where employment was

not “performed wholly as a member of a uniformed

service.” See id. at 1168.

The Sixth and Tenth Circuits disagreed, and instead found that the text of the uniformed-services

exception was unambiguous and did not cover CSRS

pensions earned by dual-status technicians.

In the decision below, the Sixth Circuit found that

the “plain text” of the uniformed-services exception

resolved its meaning. Pet. App. 11a, 13a. It read the

exception as “cabined to payments that are based

exclusively on employment in the capacity or role of

a uniformed-services member.” Id. at 11a. Under

that reading, because dual-status technicians’ CSRS

pension payments are based on service that is partially civilian in character, they are not “based

exclusively on employment in the capacity or role of

a uniformed-services member” and so do not qualify

for the exception. Id. The court acknowledged that

in other contexts the Sixth Circuit had held that

dual-status service is “irreducibly military” in nature, but it considered that irrelevant because the

service was nonetheless not “wholly” military in

nature. Id. at 15a.

14

The Tenth Circuit’s reasoning was similar. It

agreed that “the plain language of the uniformed

services exception” and its “context” together “resolve[d] the question” of its meaning. Kientz v.

Commissioner, 954 F.3d 1277, 1281 (10th Cir. 2020).

On its reading, “any pension payment that [a retiree]

receives based on work outside of his exclusive

capacity as a National Guard member does not

qualify for the uniformed services exception.” Id. at

1283. Because Congress labeled dual-status technicians as civilian employees, and because dual-status

technicians were treated as civilians for certain

employment purposes, they fell outside the exception. Id. at 1283–84. Like the Sixth Circuit, the

court recognized that dual-status technicians’ roles

have “military-specific requirements.” Id. at 1284.

But because technicians have a “hybrid” role in

which they wear both a “civilian hat” and an “army

hat,” it concluded that they do not qualify for the

uniformed-services exception which requires that a

“payment must be entirely or exclusively from military service.” Id. at 1284–85.

*

*

*

Had Babcock filed his application for Social Security benefits in the Eighth Circuit, he would have been

in exactly the same position as the applicant in

Petersen and would not have been subject to the

WEP. But because he lives in Michigan, he is subject

to the Sixth Circuit’s contrary rule. Applicants in

the Ninth, Tenth, and Eleventh Circuits are in the

same position as Babcock—subject to smaller Social

Security benefits despite their years of military

service, simply because of where they live.

15

II. THIS PETITION IS A CLEAN VEHICLE TO

RESOLVE THIS IMPORTANT QUESTION

OF STATUTORY INTERPRETATION.

1. This case presents a pure legal question of statutory interpretation that divides the courts of appeals.

See Sup. Ct. R. 10. The features of a dual-status

technician’s employment are set out by statute. The

sole question is how the uniformed-services exception

to the WEP applies to dual-status technicians.

2. Resolving the answer to this question is important because the current circuit split leads to

unfair, disparate treatment of those who rendered

service to our nation. The SSA applies the uniformed-services exception to retired dual-status

technicians “who are permanent legal residents of a

State within the Eighth Circuit” but no others.

SSAR 12-X(8), 77 Fed. Reg. 51,842, 51,843 (Aug. 27,

2012); see Larson, 967 F.3d at 920–921 & n.3 (describing SSA acquiescence ruling and implementing

guidance). Accordingly, a retired dual-status military technician receiving CSRS payments in Kansas

City, Missouri benefits from the uniformed-services

exception and receives greater Social Security benefits, but a person who served in the same place, at

the same time, at the same rank, but who now lives

in Kansas City, Kansas is subject to the WEP and

receives lower benefits. Such arbitrary treatment of

those who dedicated their careers to serving in the

National Guard—or any other uniformed service that

entitles them to pension payments for work not

covered by Social Security—is unacceptable. It also

undermines the central purpose of the uniformedservices exception to create uniformity and to avoid

16

“arbitrary and inequitable” distinctions. H.R. Rep.

103-506, at 67.

This question potentially affects tens of thousands

of veterans each year. Congress has consistently

required that there be a minimum number of dualstatus military technicians. See, e.g., 10 U.S.C. § 115

note (End Strengths for Military Technicians (Dual

Status)); National Defense Authorization Act for

Fiscal Year 2006, Pub. L. No. 109-163, § 413, 119

Stat. 3136 (providing for minimum of 66,035 dualstatus technicians); National Defense Authorization

Act for Fiscal Year 1996, Pub. L. No. 104-106,

§ 513(b), 110 Stat. 186 (providing for minimum of

64,838 military technicians). All technicians who

receive both civil-service pension payments as a

result of their dual-status work and Social Security

payments for separate covered work will be affected

by how the uniformed-services exception to the WEP

is applied.

3. There are no factual disputes that could cloud

resolution of this question here. There is no dispute

that Babcock served as a dual-status technician or

that his CSRS pension is based entirely on his service as a dual-status technician. And even if the

facts of his service as a dual-status technician were

relevant, those facts show just how untenable the

majority interpretation is. As a pilot and pilot instructor, including acting as a test pilot and training

military pilots how to fly Black Hawk helicopters,

Babcock’s role was unequivocally military in nature.

As he testified during the SSA administrative proceedings, there was no difference between him and

active-duty personnel on post while he was serving

17

as a dual-status technician. Pet. App. 38a. These

facts thus cleanly show the inequities of an interpretation that excludes a National Guard dual-status

technician, who serves in uniform in a quintessentially military capacity, from the uniformed-services

exception simply because he is also classified as a

civilian for certain employment purposes.

III.

THE DECISION BELOW IS WRONG.

1. “The preeminent canon of statutory interpretation requires” courts “to ‘presume that [the] legislature says in a statute what it means and means in a

statute what it says there.’ ” BedRoc Ltd., LLC v.

United States, 541 U.S. 176, 183 (2004) (quoting

Connecticut Nat’l Bank v. Germain, 503 U.S. 249,

253-254 (1992)) (alterations in BedRoc). Interpretation thus “begins with the statutory text, and ends

there as well if the text is unambiguous.” Id. That

bedrock principle should have resolved this case in

favor of Babcock.

The uniformed-services exception to the WEP applies to any “payment based wholly on service as a

member of a uniformed service.”

42 U.S.C.

§ 415(a)(7)(A)(III). The National Guard is a “uniformed service” as the statute defines that term. See

supra pp. 5–6. Babcock’s dual-status military technician service as a member of the National Guard

was thus service “as a member of a uniformed service.” And his CSRS pension payments were “based

wholly on” that service, as there is no other basis for

them but his dual-status National Guard service.

See supra pp. 6–8. He therefore falls within the

plain scope of the uniformed-services exception, and

18

the SSA should have exempted his CSRS payments

from the WEP.

That Babcock was also classified as a civilian for

certain employment purposes, see supra pp. 7–8, is

irrelevant under the text of the exception. The

exception is not limited to “payment[s] based wholly

on service as a member of a uniformed service who is

not designated as a Federal civilian employee” or to

“non-civilian service as a member of a uniformed

service.” Petersen v. Astrue, No. 4:08CV3178, 2009

WL 995570, at *3 (D. Neb. Apr. 14, 2009), aff’d, 633

F.3d 633 (8th Cir. 2011). It applies to payments

based on “service as a member of a uniformed service,” 42 U.S.C. § 415(a)(7)(A)(III), and there can be

no dispute that Babcock served as a member of the

National Guard when he was a dual-status technician. That reality is made more obvious by examining non-dual-status military technicians, who are not

required to be members of the National Guard or

another uniformed service as part of their employment as a technician. See 10 U.S.C. § 10217; 32

U.S.C. § 709(b)-(c).2

2

Given that National Guard dual-status technicians’ role is

“irreducibly military in nature,” courts have imposed the Feres

doctrine which prevents military personnel from suing the

government for injuries resulting from their service, on claims

they raise. See Pet. App. 15a (collecting cases); accord Wood v.

United States, 968 F.2d 738 (8th Cir. 1992). Similarly, courts

have held that dual-status technicians may not bring Title VII

discrimination actions where, given their role in the National

Guard, their complaints are “integrally related to the military’s

structure.” Mier v. Owens, 57 F.3d 747, 751 (9th Cir. 1995);

accord Fisher v. Peters, 249 F.3d 433, 443 (6th Cir. 2001).

19

2. The courts that have concluded otherwise did so

by rewriting the statute to move the word “wholly”

and change its function in the text. Take the decision below, which interpreted the uniformed-services

exception to not apply where the service at issue “is

not wholly ‘service as a member of a uniformed

service.’ ” Pet. App. 15a. On that reading, because a

dual-status technician’s service is part civilian and

part military, it is not “wholly” uniformed service

and so cannot support the uniformed-services exception.

But that reading applies the word “wholly” to service rather than to payment. That effectively moves

the word “wholly” in the statutory text:

Actual text of

§ 415(a)(7)(A)(III)

(III) a payment based wholly

on service as a member of a

uniformed service

Sixth Circuit’s

revision

(III) a payment based wholly

on service wholly as a member of a uniformed service

The Tenth Circuit’s opinion gives away the game.

It offered this formulation: “Put another way, any

pension payment that [a retiree] receives based on

work outside of his exclusive capacity as a National

Guard member does not qualify for the uniformed

services exception.” Kientz, 954 F.3d at 1283. Notice

Recognition of the essentially military nature of dual-status

technicians under doctrines that disadvantage military personnel should carry over to questions of the benefits given to

military personnel as well.

20

how “exclusive”—the court’s substitute for “wholly”—

has moved in that formulation to apply to “capacity,”

though in the statute it modifies “based.” Only by

that shift, which changes the statutory text, do

Babcock’s CSRS payments fail to qualify for the

uniformed-services exception.

Rewriting a statute’s text in this way violates this

Court’s precedents on how to interpret statutes. A

court is “not at liberty to rewrite the statute” and

“must give effect to the text Congress enacted.” Ali

v. Fed. Bureau of Prisons, 552 U.S. 214, 228 (2008).

This Court has “stated time and again that courts

must presume that a legislature says in a statute

what it means and means in a statute what it says

there.” Barnhart v. Sigmon Coal Co., 534 U.S. 438,

461-462 (2002) (internal quotation marks omitted).

Disregarding those basic interpretive principles, as

the decision below did, is reason enough for this

Court to grant review. See Food Mktg. Inst. v. Argus

Leader Media, 139 S. Ct. 2356, 2364 (2019) (“We

cannot approve such a casual disregard of the rules

of statutory interpretation.”).

3. The justifications for the re-write given by the

Sixth Circuit and the other courts on its side of the

split are all unpersuasive.

The Ninth and Tenth Circuits criticized the interpretation put forward by dual-status retirees like

Babcock as making “ ‘wholly’ ” in the uniformedservices exception mere “surplusage.” Larson, 967

F.3d at 923; see Kientz, 954 F.3d at 1285. Not so.

The word “wholly” does important work in the statute because it requires consideration of whether

payments that trigger the WEP are wholly based on

21

qualifying uniformed service. A payment not “wholly” based on service in a uniformed service would not

qualify for the exception. So, for instance, if a retiree

spent a portion of his career as a dual-status military

technician and a portion of his career as a purely

civilian federal employee, and she received a CSRS

pension based on both, she would not be able to

assert the uniformed-services exception unless she

could identify which payments were wholly attributable to the dual-status service. The SSA’s Program

Operations Manual System (POMS)—its internal

guidance for processing benefits—has instructions

for doing just that: prorating pension payments for

application of the WEP when “part of the pension is

based on covered employment” and part is based on

uncovered

employment.

See

POMS

RS

00605.370(B)(2) WEP Guarantee, Social Security

Administration (Apr. 17, 2003), available at

https://bit.ly/34Njfpt.

The Sixth Circuit embraced the SSA’s purposive

argument that if the WEP were not applied, it would

lead to an unfair windfall for dual-status technicians

receiving CSRS pensions. See Pet. App. 12a-13a.

But the uniformed-services exception is a carve-out

from the WEP—meaning Congress intended the

exception to give preferential treatment to some

groups, and the question is simply whom the exception reaches. In the SSA’s view, the uniformedservices exception exempts “only military retirement

pay based on reserve inactive duty training.” 77 Fed.

Reg. at 51,843; see Larson, 967 F.3d at 925–926

(deferring to this SSA acquiesce-ruling interpretation). If that is what Congress intended, it could

22

have written that statute. But it instead settled on

broader language—language that does reach dualstatus technicians. See Petersen, 633 F.3d at 637

(“The SSA’s request that this court read a ‘military

duty’ requirement into the statute is rejected.”).

Finally, the Sixth Circuit was wrong to invoke the

statutory canon that “an exception to [a] general rule

* * * should be construed narrowly.” Pet. App. 12a

(citing Commissioner v. Clark, 489 U.S. 726, 739

(1989)). That canon applies when the exception is

itself “ambiguous” and where an “expansive reading”

would “eviscerate th[e] legislative judgment” embodied by the general rule. Clark, 489 U.S. at 739.

Here, the uniformed-services exception unambiguously does cover dual-status technicians’ CSRS

payments, and reading it that way leaves the WEP

intact for the vast majority of purely civilian federal

and state government pension payments that the

WEP was enacted to address.

*

*

*

The text of the uniformed-services exception is

clear. The decision below and those that agree with

it have contorted the text to achieve what those

courts believe is what the statute is meant to do.

But courts may not “revise legislation” because they

perceive that the “the text as written creates an

apparent anomaly,” nor do they have a “roving

license * * * to disregard clear language” because

they believe “Congress must have intended something” else. Michigan v. Bay Mills Indian Cmty., 572

U.S. 782, 794 (2014) (internal quotation marks

omitted). That four courts of appeals have disregarded the statute’s plain text in contravention of

23

this Court’s principles of statutory interpretation is

all the more reason to grant review.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JUSTIN M. BAHRIE

NICHOLAS A. KIPA

BAHRIE LAW, PLLC

6810 S. Cedar St., Ste. 2C

Lansing, MI 48911

NEAL KUMAR KATYAL

Counsel of Record

KIRTI DATLA

BENJAMIN A. FIELD

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

Counsel for Petitioner

OCTOBER 2020