Amicus Curiae Brief — David Bryon Babcock, Petitioner v. Kilolo Kijakazi, Acting Commissioner of Social Security
Supreme Court briefMay 27, 2021
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No. 20-480
IN THE
Supreme Court of the United States
________________
DAVID BABCOCK,
Petitioner,
v.
COMMISSIONER OF SOCIAL SECURITY,
Respondent.
________________
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
________________
BRIEF OF AMICI CURIAE NATIONAL VETERANS LEGAL SERVICES PROGRAM, RESERVE
ORGANIZATION OF AMERICA, AND ENLISTED ASSOCIATION OF THE NATIONAL
GUARD OF THE UNITED STATES
IN SUPPORT OF PETITIONER
________________
Ned Hirschfeld
Melanie L. Bostwick
ORRICK, HERRINGTON &
Counsel of Record
SUTCLIFFE LLP
Eric A. Shumsky
51 West 52nd Street
Monica Haymond
ORRICK, HERRINGTON &
New York, NY 10019
(212) 506-5000
SUTCLIFFE LLP
1152 15th Street N.W.
Washington, D.C. 20005
(202) 339-8400
mbostwick@orrick.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................... iii
INTEREST OF AMICI CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................... 4
ARGUMENT ............................................................. 6
I.
The Work Of Dual-Status Technicians Is
Fundamentally Military And Essential To
The National Guard’s Mission Readiness. ........ 6
A. The history of the dual-status
technician program demonstrates its
fundamentally military nature..................... 6
B. Dual-status technicians are no less
“military” in nature than their activeduty colleagues. ........................................... 12
II. The Pro-Veteran Canon Of Construction,
Which Courts Of Appeals Have
Improperly Ignored, Compels Petitioner’s
Reading Of The WEP Exception. ..................... 17
A. The pro-veteran canon is a
longstanding and essential interpretive
tool.. ............................................................. 18
B. The pro-veteran canon confirms that
the WEP exception covers payments
for work performed by dual-status
technicians................................................... 19
ii
C. Courts of appeals have misconstrued
the WEP exception by inexplicably
ignoring the pro-veteran canon. ................. 23
III. Excluding Dual-Status Technicians From
The WEP Exception Creates Inequitable
Conflicts With Other Legal Doctrines. ............ 24
CONCLUSION ........................................................ 27
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Am. Fed’n of Gov’t Emps. v. Hoffman,
543 F.2d 930 (D.C. Cir. 1976) ................ 7, 8, 12, 15
Astoria Fed. Sav. & Loan Ass’n v.
Solimino,
501 U.S. 104 (1991)..............................................19
Boone v. Lightner,
319 U.S. 561 (1943)........................................18, 21
Chappell v. Wallace,
462 U.S. 296 (1983)..............................................24
Doe v. United States,
141 S. Ct. 1498 (2021)..........................................24
Dyer v. Dep’t of the Air Force,
971 F.3d 1377 (Fed. Cir. 2020) ............................14
Feres v. United States,
340 U.S. 135 (1950)..........................................6, 24
Filer v. Donley,
690 F.3d 643 (5th Cir. 2012)................................25
Fisher v. Peters,
249 F.3d 433 (6th Cir. 2001).... 6, 14, 20, 24, 25, 26
iv
Fishgold v. Sullivan Drydock & Repair
Corp.,
328 U.S. 275 (1946)..............................................18
Henderson ex rel. Henderson v.
Shinseki,
562 U.S. 428 (2011)........................................18, 23
Ill. Nat’l Guard v. FLRA,
854 F.2d 1396 (D.C. Cir. 1988) ............................17
Impression Prods., Inc. v. Lexmark Int’l,
Inc.,
137 S. Ct. 1523 (2017)....................................19, 21
Kientz v. Comm’r, SSA,
954 F.3d 1277 (10th Cir. 2020)............................16
King v. St. Vincent’s Hosp.,
502 U.S. 215 (1991).............................. 5, 18, 19, 21
Larson v. Saul,
967 F.3d 914 (9th Cir. 2020)....... 16, 20, 21, 22, 23
Lawrence v. Shaw,
300 U.S. 245 (1937)..............................................18
Martin v. Soc. Sec. Admin., Comm’r,
903 F.3d 1154 (11th Cir. 2018)......................14, 20
Maryland for Use of Levin v. United
States,
381 U.S. 41 (1965)..................................................7
NeSmith v. Fulton,
615 F.2d 196 (5th Cir. 1980)..................................8
v
Neville v. Lipnic,
778 F. App’x 280 (5th Cir. 2019) .........................16
New Jersey Air Nat’l Guard v. FLRA,
677 F.2d 276 (3d Cir. 1982) .................................13
Overton v. New York State Div. of Mil.
& Naval Affs.,
373 F.3d 83 (2d Cir. 2004) ...................................25
Perpich v. Dep’t of Def.,
496 U.S. 334 (1990)................................................7
Petersen v. Astrue,
633 F.3d 633 (8th Cir. 2011).................... 14, 17, 20
Skidmore v. Swift & Co.,
323 U.S. 134 (1944)..............................................22
Stauber v. Cline,
837 F.2d 395 (9th Cir. 1988)................................13
United States v. Johnson,
481 U.S. 681 (1987).................................. 24, 25, 26
Walch v. Adjutant Gen.’s Dep’t of Tx.,
533 F.3d 289 (5th Cir. 2008)............................9, 25
Wright v. Park,
5 F.3d 586 (1st Cir. 1993) ........................ 20, 25, 26
Statutes
10 U.S.C. § 10216 ......................................................16
10 U.S.C. § 10216(a)(2) .............................................13
vi
10 U.S.C. § 10217(e) ..................................................10
28 U.S.C. § 1346(b)....................................................24
28 U.S.C. §§ 2671-2680 .............................................24
32 U.S.C. § 709 ............................................................8
32 U.S.C. § 709(a)(1) .................................................20
32 U.S.C. § 709(a)(2) .................................................20
32 U.S.C. § 709(a)(3) .................................................20
32 U.S.C. § 709(a)(3)(A) ............................................15
32 U.S.C. § 709(a)(3)(B) ............................................15
32 U.S.C. § 709(b)......................................................13
32 U.S.C. § 709(b)(2) .................................................20
32 U.S.C. § 709(b)(3) .................................................20
32 U.S.C. § 709(b)(4) ...........................................14, 20
32 U.S.C. § 709(e) ......................................................13
32 U.S.C. § 709(f)(1)(A) .............................................13
32 U.S.C. § 709(f)(4) ..................................................14
42 U.S.C. § 415(a)(7)(A) ..............................................4
42 U.S.C. § 415(a)(7)(A)(III)...................... 4, 11, 17, 19
vii
National Guard Technicians Act of
1968, Pub. L. No. 90-486, 82 Stat.
755 (Aug. 13, 1968), ...............................................7
§ 709(a) ...............................................................8, 9
§ 709(b) ...................................................................9
§ 709(c) ...................................................................9
§ 709(d) ...................................................................8
§ 709(e) ...................................................................9
§ 709(f) ....................................................................9
Pub. L. No. 104-106, § 1038, 110 Stat.
186 (Feb. 10, 1996).................................................9
Pub. L. No. 105-85, § 522(c), 111 Stat.
1629 (Nov. 18, 1997) ..............................................9
Pub. L. No. 114-92, § 1053, 129 Stat.
726 (Nov. 25, 2015) ..............................................11
Pub. L. No. 115-91, § 1083, 131 Stat.
1283 (Dec. 12, 2017).............................................11
Other Authorities
Cong. Rsch. Serv., RL30487, Military
Technicians: The Issue of Mandatory
Retirement for Non-Dual-Status
Technicians (2000) .............................................7, 9
viii
Dep’t of Def. Appropriations for 2015:
Hearings before a Subcomm. of the
Comm. on Appropriations, Part 2,
113 Cong. 1 (2014) .........................................10, 12
Dep’t of Def. Appropriations for Fiscal
Year 2018: Hearing before a
Subcomm. of the Comm. on
Appropriations, 115 Cong. 45 (2017) ..................11
Dep’t of Def., FY 2020 Manpower Report (Apr. 19, 2019) ..............................................12
H.R. Rep. No. 90-1823 (1968) ..................... 7, 8, 13, 14
H.R. Rep. No. 95-451 (1977) ...............................12, 14
H.R. Rep. No. 103-506 (1994) ...............................4, 19
Jim Garamone, In Face of Shutdown,
National Guard Leaders Worry
About Readiness, Nat’l Guard (Oct.
11, 2013), https://tinyurl.com/
hk4tky4e...............................................................15
Lawrence Kapp, Cong. Res. Serv., RL
30802, Reserve Component
Personnel Issues (June 15, 2020),
https://tinyurl.com/44xhxj2b ...............................16
Letter from Director Krieger, U.S.
General Accounting Office, to
Secretary of Defense (Feb. 26, 1979).....................9
ix
Letter from Mark E. Gebicke, Director
of Military Operations &
Capabilities Issues, to U.S. Senate
(Aug. 23, 1996), https://tinyurl.com/
6abzju4n .................................................................9
Michael J. Davidson & Steve Walters,
Neither Man Nor Beast: The
National Guard Technician, Modern
Day Military Minotaur, 1995 Army
Law 49 (Dec. 1995) ......................................... 8, 16
Nat’l Governors Ass’n, Letter to House
Armed Services Committee (Apr. 18,
2017), https://tinyurl.com/53mx3cwz ..................15
Nat’l Governors Ass’n, Military
Technicians, https://tinyurl.com/
53mx3cwz .............................................................11
Nat’l Guard Bureau, National Guard
Technician Handbook (Jan. 2017),
https://tinyurl.com/wwub4n4 ........................13, 15
S. Rep. No. 90-1446 (1968)....................................7, 16
Social Security Acquiescence Ruling, 77
Fed. Reg. 51,842 (Aug. 27, 2012) .........................22
INTEREST OF AMICI CURIAE 1
Amici curiae are the National Veterans Legal Services Program, the Reserve Organization of America,
and the Enlisted Association of the National Guard of
the United States.
Founded in 1981, the National Veterans Legal
Services Program (NVLSP) is a nonprofit organization that works to ensure that the Nation’s 25 million
veterans and active-duty service members have access to the federal benefits to which their military service entitles them. NVLSP does so in part by serving
as a national support center that recruits, trains, and
assists thousands of volunteer lawyers and veterans’
advocates. For the last 18 years, NVLSP has published the 1,900-page Veterans Benefits Manual, the
leading practice guide on the subject. NVLSP also is
a veterans service organization recognized by the Secretary of Defense to assist veterans in the preparation, presentation, and prosecution of veterans’
benefits claims. See 38 U.S.C. § 5902. In addition,
NVLSP has filed numerous amicus briefs in this
Court and others, seeking to provide assistance in
cases that present issues of broad importance to veterans and the VA benefits system. See, e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969
(2016); Henderson ex rel. Henderson v. Shinseki, 562
1 No counsel for a party authored any part of this brief, and
no person other than amici, their members, or their counsel
made a monetary contribution intended to fund its preparation
or submission. Amici curiae timely provided notice of intent to
file this brief to all parties, and all parties have consented to the
filing of this brief.
2
U.S. 428 (2011); Shinseki v. Sanders, 556 U.S. 396
(2009).
The Reserve Organization of America (ROA) has
served since 1922 as America’s only exclusive advocate for the Reserve and National Guard—all ranks,
all services. With a sole focus on support of the Reserve and National Guard, ROA promotes the interests of Reserve Component members, their families,
and veterans of Reserve service. ROA provides tools
and resources to reservists and their families and advocates for reforms from Capitol Hill to the Department of Veterans Affairs to the Pentagon. ROA also
regularly files briefs as part of this advocacy—including in cases before this Court. See, e.g., Torres v. Tx.
Dep’t of Pub. Safety, No. 20-603 (Mar. 2021); Nat’l Coalition for Men v. Selective Serv. Sys., No. 20-928 (Feb.
2021).
The Enlisted Association of the National Guard of
the United States (EANGUS) was founded in 1970 by
a group of senior non-commissioned officers. Its goal
is to increase the voice of enlisted persons in the National Guard. It is dedicated to promoting the status,
welfare, and professionalism of enlisted members of
the National Guard by promoting adequate pay, benefits, entitlements, equipment, staffing, and installations for the National Guard. EANGUS represents all
54 states and territories, with a constituency base of
over 414,000, as well as thousands of retired members. It has frequently supported members of the National Guard as amicus curiae in this Court. See, e.g.,
Nat’l Coalition for Men v. Selective Serv. Sys., No. 20928 (Feb. 2021); Dow Chemical Co. v. Stephenson, 539
U.S. 111 (2003).
3
Amici appear in support of Petitioner to explain
the nature and history of the dual-status military
technician position. That role is, and has long been,
irreducibly military. From the uniforms they wear to
the jobs they perform, there is little that distinguishes
dual-status technicians from active-duty soldiers. Petitioner is thus correct that technicians perform “service as a member of a uniformed service,” triggering
an exception to the Windfall Elimination Provision
(WEP). Amici also trace the long history and interpretive significance of the pro-veteran canon of construction, which plays a vital role in legislation related to
servicemembers and veterans. If there were any ambiguity about the scope of the WEP exception, the proveteran canon would resolve it in favor of covering
dual-status technicians. Finally, drawing on decades
of experience in the courts, amici highlight how excluding dual-status technicians from the WEP exception would clash with the way technicians are treated
in other contexts. The Feres doctrine, for example, restricts technicians’ right to sue for workplace harm
precisely because their work is fundamentally military in nature. The same service that triggers those
limitations also qualifies dual-status technicians for
benefits like the WEP exception’s augmented social
security payouts.
4
INTRODUCTION AND SUMMARY OF
ARGUMENT
To ensure that social security benefits track preretirement income, the WEP provides that earnings
from certain jobs trigger reductions in social security
payouts. See 42 U.S.C. § 415(a)(7)(A). But the WEP
does not apply to earnings from jobs in the uniformed
services, including the National Guard. Congress enacted that rule to avoid “inequitable” treatment of servicemembers and veterans. H.R. Rep. No. 103-506, at
67 (1994). And it drafted the rule in straightforward
terms, exempting 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). Applying that rule
here is equally straightforward: Payments to dualstatus military technicians, who work full-time as
members of the National Guard and provide services
essential to mission readiness, are exempt from the
WEP.
Several courts of appeals, including the Sixth Circuit below, have rejected this simple logic. Their theory is that dual-status technicians somehow are not
sufficiently “military” to perform work “as a member
of” the National Guard. E.g. Pet. App. 10a-11a. As Petitioner explains, that defies the statute’s plain text,
which unambiguously covers all “service”—however
military in nature—performed by members of the National Guard, including dual-status technicians. Pet.
Br. 22-26. But even if the statute could be read to require service that is military in nature, the work of
dual-status technicians unquestionably qualifies. In
concluding otherwise, the Sixth Circuit and others
5
have made factual, interpretive, and doctrinal errors.
Factually, dual-status technicians are no less
“military” than any other member of the National
Guard. They serve in a distinctly military context that
governs every aspect of their position. They report to
and serve military commanders. They wear a military
uniform and must follow military protocol. Their jobs
are central to the effectiveness and efficiency of their
units. And when their units deploy in the face of a
natural disaster or foreign threat, they are deployed
with them. In short, thanks in part to military requirements imposed by Congress, dual-status technicians are effectively indistinguishable from their
active-duty peers.
As a matter of statutory interpretation, reading
Congress’s broad language to exclude such fundamentally military service—on the ground that it is still not
military enough—squarely contravenes the pro-veteran canon of construction. This Court has long held
that “provisions for benefits to members of the Armed
Services,” like the WEP exception, “are to be construed in the beneficiaries’ favor.” King v. St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991). Congress
crafted the WEP exception against the background of
that interpretive rule, and it compels a reading of the
statute that encompasses dual-status technicians as
well as other members of the National Guard. Circuits have held otherwise only by flatly ignoring the
pro-veteran canon, a fundamental error of statutory
construction that only this Court can correct.
6
Doctrinally, moreover, the idea that dual-status
technicians are not sufficiently military under the
WEP exception cannot be squared with their treatment in other contexts, including the Feres doctrine.
For decades, Feres has barred dual-status technicians
from filing workplace tort or discrimination claims—
precisely because they, like their active-duty colleagues, are “irreducibly military in nature.” Fisher v.
Peters, 249 F.3d 433, 439 (6th Cir. 2001); see Feres v.
United States, 340 U.S. 135 (1950). Courts have inexplicably abandoned that logic when applying the WEP
exception, creating an unfair doctrinal clash that subjects dual-status technicians to the restrictions of military work while denying them the benefits.
In short, the theory on which courts have excluded dual-status technicians from the WEP exception is flawed several times over. This Court should
instead read the statute to cover all payments based
on service as a dual-status technician.
ARGUMENT
I.
The Work Of Dual-Status Technicians Is
Fundamentally Military And Essential To
The National Guard’s Mission Readiness.
A. The history of the dual-status technician
program demonstrates its fundamentally military nature.
For over 50 years, the dual-status military technician program has been essential to the military
readiness of our armed forces. Its history underscores
how fundamentally military the job is.
7
1. Dual-status military technicians descended
from state militia personnel. After the start of World
War I, Congress sought to establish the state militias
as a reliable force by reconstituting them into a “‘federalize[d]’” National Guard that provided federal
funds for certain employees. See Perpich v. Dep’t of
Def., 496 U.S. 334, 342-44 (1990). That force included
animal caretakers and clerks who provided supplies
and equipment to the state militias. H.R. Rep. No. 901823, at 5 (1968); Cong. Rsch. Serv., RL30487, Military Technicians: The Issue of Mandatory Retirement
for Non-Dual-Status Technicians 3 (2000) (hereafter
“2000 CRS Report”). During and after World War II,
those clerks became even more fundamental to military operations, taking on responsibility for “training,
employment in State headquarters, air defense, military support of civil defense, and aircraft operations.”
S. Rep. No. 90-1446, at 5 (1968). Although their roles
evolved, they remained state employees whose salaries were paid with federal funds and who received
state benefits. H.R. Rep. No. 90-1823, at 4; Larson v.
Saul, 967 F.3d 914, 923-24 (9th Cir. 2020). Over the
next several decades, a similar program developed administratively within the Army and Air Force Reserves. See 2000 CRS Report at 3; Am. Fed’n of Gov’t
Emps. v. Hoffman, 543 F.2d 930, 932-36 (D.C. Cir.
1976).
Because these support personnel were integral to
the military readiness of the units they served, they
were also required to enlist in those units, subject to
few exceptions. Maryland for Use of Levin v. United
States, 381 U.S. 41, 47 n.14 (1965). In the National
Guard, for instance, about 95 percent of technicians
8
were required to be enlisted military members. H.R.
Rep. No. 90-1823, at 4.
2. In 1968, Congress sought to bring uniformity to
this system by establishing the full-time role of “dualstatus military technicians” in the National Guard
Technicians Act of 1968. See Pub. L. No. 90-486, 82
Stat. 755, 755-60 (Aug. 13, 1968) (codified principally
at 32 U.S.C. § 709); see also Michael J. Davidson &
Steve Walters, Neither Man Nor Beast: The National
Guard Technician, Modern Day Military Minotaur,
1995 Army Law 49, 50-52 (Dec. 1995).
One of the core “purposes” of the Act was to “recognize the military requirements … [of] the technician program.” H.R. Rep. No. 90-1823, at 1. The
technician position was intended first and foremost to
be a job “in a military organization.” NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir. 1980). They would
continue to provide some maintenance and administrative work at the same time that they would conduct
military training and be integrated with their units
by conducting military drills. H.R. Rep. No. 90-1823,
at 2. Critical to that military-oriented mission, technicians would be available to enter active service
when their units were called. Id.; Davidson, supra, at
50-51. To recruit top talent, Congress also provided a
“nominal” federal employment status so that technicians would receive competitive compensation. Am.
Fed’n of Gov’t Emps., 730 F.2d at 1543; see H.R. Rep.
No. 90-1823, at 1.
By statutorily requiring military technicians to
meet these conditions, Congress conveyed that it “required [a military technician] to be a military selected
9
reservist first and a Federal employee second.” Letter
from Director Krieger, U.S. General Accounting Office, to Secretary of Defense, at 2 (Feb. 26, 1979). Congress intended the military character of technicians
to be “extensive.” Walch v. Adjutant Gen.’s Dep’t of
Tx., 533 F.3d 289, 296-97 (5th Cir. 2008). Military
technicians would serve as employees of the Army or
Air Force and the National Guard. Pub. L. No. 90-486,
§ 709(a), (d), 82 Stat. at 755. They would hold their
position only so long as they also were a member of
that service, with an equivalent military grade. Id.
§§ 709(b),(e),(f), 82 Stat. at 756. They would report
solely to the state Adjutants General, who in turn
would be designated by the Secretaries of the Army
and Air Force. Id. § 709(c), 82 Stat. at 755.
3. Each time Congress has sought to modify the
dual-status military technician scheme, it has only
further cemented its inherently military function. In
1996, for instance, Congress required technicians to
wear their military uniforms “while performing duties as a technician.” National Defense Authorization
Act, Pub. L. No. 104-106, § 1038, 110 Stat. 186, 432
(Feb. 10, 1996). It did so on the strength of evidence
that technicians “fill a military role” and the uniform
“promotes military values in the workforce.” Letter
from Mark E. Gebicke, Director of Military Operations and Capabilities Issues, to U.S. Senate, at 2
(Aug. 23, 1996), https://tinyurl.com/6abzju4n. In
1997, Congress withdrew authority from the Secretary of Army and Airforce to make exceptions to the
requirement that technicians be members of the service, ensuring that technicians could be deployed with
their units and shoring up the reserves’ military readiness. Pub. L. No. 105-85, § 522(c), 111 Stat. 1629,
10
1735 (Nov. 18, 1997); 2000 CSR Report at 19. And, as
Congress expanded the role of dual-status technicians, it also sought to phase out non-dual-status
technicians who did not deploy with their units and
thus “undermin[ed] the readiness of reserve units.”
2000 CRS Report at 1; see also id. at 24 n. 63 (collecting Department of Defense Appropriations Acts that
further limited the number of non-dual-status technicians); 10 U.S.C. § 10217(e) (requiring the Secretary
of Defense to phase out the non-dual status program
by converting their positions and barring new hires
after 2017).
Recent congressional debate about reducing the
statutorily authorized number of dual-status technicians further underscores the military nature of the
job. Congress considered a reduction in 2015. See
Dep’t of Def. Appropriations for 2015: Hearings before
a Subcomm. Of the Comm. on Appropriations, Part 2,
113 Cong. 226-28 (2014). Assessing the costs of such
a change, Lieutenant General Stanley Clarke, then
the director of the Air National Guard, testified that
losing dual-status technicians “would be devastating
to the Guard, because they provide such an important
function of training and administrating the part-time
force.” Id. at 227. Major General Judd Lyons, then
Acting Director of the Army National Guard, drove
the point home. He testified that the work of dual-status technicians is fundamentally “tied together” with
the National Guard’s “force structure.” Id. Technicians are the “foundation of our formations” and “absolutely vital to what we do”—so much so that any
reduction in their numbers would compel “a corresponding” reduction in overall forces. Id.
11
These objections grew louder after Congress
passed the 2016 National Defense Appropriations
Act, which required “conversion” of 20% of “military
technician (dual-status) positions to civilian positions.” Pub. L. No. 114-92, § 1053, 129 Stat. 981 (Nov.
25, 2015) (capitalization altered). The National Guard
issued a report finding that the conversion would “degrade military readiness and undermine the vital role
that the National Guard plays in emergency response.” Dep’t of Def. Appropriations for Fiscal Year
2018: Hearing before a Subcomm. Of the Comm. on
Appropriations, 115 Cong. 45 (2017) (hereinafter
“2017 Appropriations Hearing”). Soon after, the Department of Defense independently concluded that
the National Guard could preserve its mission readiness only by retaining over 95 percent of dual-status
technicians, converting just a small fraction who were
dedicated to certain administrative tasks. Id. State
governors urged Congress to minimize any required
conversion for similar reasons. Nat’l Governors Ass’n,
Military Technicians, available at https://tinyurl.
com/53mx3cwz. The consensus was clear: Dual-status
technicians are fundamentally integrated with, and
indispensable to, the National Guard’s military operations. Congress ultimately agreed. The 2018 National Defense Appropriations Act slashed the
conversion requirement considerably. See Pub. L. No.
115-91, § 1083, 131 Stat. 1283, (Dec. 12, 2017).
In short, the history of dual-status military technicians confirms that they serve “as a member of a
uniformed service.” 42 U.S.C. § 415(a)(7)(A)(III).
12
B. Dual-status technicians are no less
“military” in nature than their activeduty colleagues.
1. Dual-status technicians continue to be essential to the nation’s reserve forces today. At last count,
nearly 63,000 dual-status technicians were in service.
See Dep’t of Def., FY 2020 Manpower Report, at 12
tbl. 2-3 (Apr. 19, 2019). In the National Guard alone,
technicians made up 46% of the Army National Guard
and 57% of the Air National Guard. Id. Choose two
members of the National Guard at random, and one
is bound to be a technician. It is thus no surprise that
Congress has called dual-status technicians “[o]ne of
the most important factors influencing reserve component readiness”—“[t]he largest single source of fulltime support” in the form of “day-to-day management,
administration, training and maintenance.” H.R. Rep.
No. 95-451, at 91-92 (1977).
Nonetheless, the Sixth Circuit concluded that
dual-status technicians are insufficiently “military”
because they are classified as civilian employees for
purposes of compensation. Pet. App. 11a. As courts
have long recognized, however, that classification is
only “nominal.” Am. Fed’n of Gov’t Emps., 730 F.2d at
1543. It does not alter the fundamentally military nature of the job. As Congress has recognized, “[T]echnicians perform military work in the same place, with
the same training, and in the same way as active duty
military personnel. The technician job and its military counterpart responsibility are one in the same.”
H.R. Rep. No. 95-451, at 97-98. Or as the then-director of the Air National Guard put it in recent testimony, “you wouldn’t be able to tell the difference”
13
between dual-status technicians and full-time reservists. Hearing before a Subcomm. of the Comm. on Appropriations., Part 2, 113 Cong. 227 (statement of Lt.
Gen. Stanley Clarke).
The federal civilian system has little to no influence on the daily life of a dual-status technician. It is
“military regulations, standard operating procedures,
and active-duty military officers [that] control[] how
the shop [is] run.” Stauber v. Cline, 837 F.2d 395, 399
(9th Cir. 1988). This “distinctly military context” pervades every aspect of a military technician’s job—
from how they are hired, to the duties they perform
on the job, to how they are required to behave, to the
sacrifices they make in service to the country. New
Jersey Air Nat’l Guard v. FLRA, 677 F.2d 276, 279 (3d
Cir. 1982).
Military technicians are “accounted for as a separate category of civilian employees.” 10 U.S.C.
§ 10216(a)(2). They are “outside the competitive service,” meaning that technicians are hired outside the
open and competitive examination and skill evaluation scheme. 32 U.S.C. § 709(e). Technicians also do
not receive a veteran’s preference in hiring or retention, precisely because it is incompatible with “an organization organized and operated along military
lines.” H.R. Rep. No. 90-1823, at 3, 13; see Nat’l Guard
Bureau, National Guard Technician Handbook 1
(Jan. 2017), https://tinyurl.com/wwub4n4 (hereafter
“National Guard Handbook”). They must maintain
their military status and hold a corresponding “military grade” as a condition of their employment. 32
U.S.C. § 709(b), (f)(1)(A). And they receive less protection than their fully civilian counterparts if the state
14
Adjutant General terminates that status. Such a termination decision is “‘military-unique’” and may not
be appealed to the Merits Systems Protection Board,
unlike termination decisions for federal civilian employees. Dyer v. Dep’t of the Air Force, 971 F.3d 1377,
1382-83 (Fed. Cir. 2020); 32 U.S.C. § 709(f)(4).
To maintain their military membership, technicians must maintain their military professional qualifications and perform certain statutorily prescribed
duties. Military technicians must meet “all the mental and physical standards … prescribed by the military departments.” H.R. Rep. No. 90-1823, at 1; see
Petersen v. Astrue, 633 F.3d 633, 635 (8th Cir. 2011).
And they must participate in weekend drills and annual military training just like any other solider. See
Martin v. Soc. Sec. Admin., Comm’r, 903 F.3d 1154,
1158 (11th Cir. 2018).
In performing that work, military technicians “accept[] the responsibilities inherent in military discipline and the other facets of military life.” H.R. Rep.
No. 95-451, at 95. They report to military command.
On the job, technicians observe military protocol, such
as “saluting superior officers” and other “[m]ilitary
courtesies.” Fisher, 249 F.3d at 434. They wear a uniform to work, 32 U.S.C. § 709(b)(4), which must be
“clean, serviceable, and roll-pressed,” Army Regs.
670-1, at 3-6. That uniform must clearly show their
military rank. And they must “ensur[e] their appearance reflects the highest level of professionalism” to
maintain “esprit de corps and morale within a unit.”
Id. at 1-1. These regulations are extensive. Men can
be sanctioned if their hair is not “neat and conservative,” meaning tapered, shaved, or trimmed closely to
15
the scalp. Id. at 3-2. Similarly, women must adhere to
strict length-limits on their hair and are authorized
to use only certain hair-holding devices. Id. Technicians’ nails must be clean and trimmed. Boots must
be shined. Medals and ribbons must be clean and not
frayed. Id. Even after-hours, technicians must follow
military “customs and courtesies” while in uniform.
See National Guard Handbook, supra, at 2.
Military technicians understand that their central role is to ensure that the National Guard can
quickly and effectively deploy to address natural disasters and wartime needs. Am. Fed’n of Gov’t Emps.,
730 F.2d at 1544-46. They serve as the “primary
source of immediate manpower when governors call
on the Guard to respond to natural disasters and
adaptive human threats.” Nat’l Governors Ass’n, Letter to House Armed Services Committee (Apr. 18,
2017), available at https://tinyurl.com/53mx3cwz; see,
e.g., Jim Garamone, In Face of Shutdown, National
Guard Leaders Worry About Readiness, Nat’l Guard
(Oct. 11, 2013), https://tinyurl.com/hk4tky4e (technicians provide “critical support,” including during
Tropical Storm Karen when thousands of technicians
“assist[ed] with disaster response actions”).
And when their units are deployed overseas in
armed conflict, technicians deploy with them—no different from their active-duty peers. 32 U.S.C.
§ 709(a)(3)(A)-(B). They are similarly eligible for military decorations and honors for their service. See Pet.
Br. 17 (awarded Bronze Star, Army Achievement
Medal, and Global War on Terrorism Expeditionary
Medal for service).
16
2. Petitioner’s story exemplifies the experience
and skills possessed by military technicians that are
integral to their units’ mission readiness. David Babcock joined the National Guard as an enlisted soldier,
attended flight school, and became a licensed pilot.
Pet. Br. 16. 2 He then served as a pilot and flight instructor. Id. His experience was typical; many dualstatus technicians conduct and manage military
training programs. See 10 U.S.C. § 10216; Lawrence
Kapp, Cong. Res. Serv., RL 30802, Reserve Component Personnel Issues, 5 (June 15, 2020), https://tinyurl.com/44xhxj2b (“Some [military technicians]s
may also perform certain operational support duties
and provide training to active component personnel,
[Department of Defense or “DOD”] contractors, DOD
civilians, and foreign military personnel.”). Technicians often “maintain planes, helicopters and tanks,”
“run armories,” and “keep records for the National
Guard and the reserves,” Davidson, supra, at 60 n.30,
as part of their mission to maintain “air defense, military support of civil defense, and aircraft operations.”
S. Rep. No. 90-1446, at 5 (1968). On top of that, Petitioner Babcock was later deployed on active duty to
Iraq with his National Guard unit. Pet. Br. 17; see
also Larson, 967 F.3d at 917 (dual-status technician
deployed overseas).
In short, military technicians, although nominally considered federal civilian employees, serve “‘in
2 Petitioner’s job duties were similar to those of other dualstatus technicians. See, e.g., Kientz v. Comm’r, SSA, 954 F.3d
1277, 1278 (10th Cir. 2020) (mechanic on electronic measurement equipment); Neville v. Lipnic, 778 F. App’x 280, 282 (5th
Cir. 2019) (serviced F-16 fighter jets).
17
a distinctly military context, implicating significant
military concerns.’” Ill. Nat’l Guard v. FLRA, 854 F.2d
1396, 1398 (D.C. Cir. 1988).
II. The Pro-Veteran Canon Of Construction,
Which Courts Of Appeals Have Improperly
Ignored, Compels Petitioner’s Reading Of
The WEP Exception.
Given the fundamentally military nature of a
dual-status technician’s work, it plainly qualifies as
“service as a member of a uniformed service” under
the WEP exception. 42 U.S.C. § 415(a)(7)(A)(III).
Thus, as the Eighth Circuit has held, the WEP exception covers payments “based wholly” on a technician’s
work. Id.; see Petersen, 633 F.3d at 637-38. The case
should end there. Whether a technician’s work could
be further sub-divided into relatively “military” and
“civilian” tasks, see BIO 10-11, is beside the point. The
statute draws no such distinction. See Petersen, 633
F.3d at 637 (“[A]bsent from the WEP exception is a
requirement that the ‘service’ be only in a non-civilian
or military duty capacity.”). Certainly, the word
“wholly” does not do so. It modifies “payment,” not
“service,” indicating simply that a payment (say, a
pension) must be earned entirely by the uniformed job
in question—not a combination of that job and distinct employment outside the uniformed services. Pet.
Br. 24-26.
If the plain text of the WEP exception created any
apparent ambiguity about the scope of coverage, however, a bedrock rule of construction—the pro-veteran
canon—would compel inclusion of dual-status technicians. That canon instructs that “provisions for
18
benefits to members of the Armed Services,” like the
WEP exception, “are to be construed in the beneficiaries’ favor.” King, 502 U.S. at 220 n.9. And it applies
with particular force in this case, where the government attempts to disadvantage certain veterans by
importing a hyper-technical distinction that Congress
did not clearly endorse—and that no agency has enacted through formal rulemaking. Courts of appeals
have ruled in the government’s favor only by inexplicably omitting the pro-veteran canon from their analysis, a fundamental error in methodology that cries
out for correction by this Court.
A. The pro-veteran canon is a longstanding
and essential interpretive tool.
The pro-veteran canon took root at least eighty
years ago. Asked to interpret statutes designed to
benefit servicemembers and veterans, this Court emphasized that such provisions are “always to be
liberally construed to protect those who have been
obliged to drop their own affairs to take up the
burdens of the nation.” Boone v. Lightner, 319 U.S.
561, 575 (1943); see Fishgold v. Sullivan Drydock &
Repair Corp., 328 U.S. 275, 285 (1946); Lawrence v.
Shaw, 300 U.S. 245, 249-50 (1937). That rule reflects
the government’s longstanding solicitude toward
members of the uniformed services. Boone, 319 U.S.
at 575. And it remains a critical interpretive canon for
this Court. In Henderson, this Court declined to read
a statute to impose “harsh consequences” on veterans
because, “in light of the [pro-veteran] canon,” the statute lacked a sufficiently “clear indication” that Congress intended such a result. 562 U.S. at 441 (internal
quotation marks omitted).
19
Indeed, the force of the pro-veteran canon has
grown with time. After nearly a century, it is without
question a “well established” “common law principle.”
Impression Prods., Inc. v. Lexmark Int’l, Inc., 137 S.
Ct. 1523, 1536 (2017) (quoting Astoria Fed. Sav. &
Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991)).
That means courts generally “may take it as given
that Congress has legislated with an expectation that
the principle will apply.” Id.; see King, 502 U.S. at 220
n.9. The pro-veteran canon is thus essential to a faithful reading of Congress’s chosen language, which was
shaped by the understanding that courts would resolve any uncertainty in veterans’ favor.
B. The pro-veteran canon confirms that the
WEP exception covers payments for
work
performed
by
dual-status
technicians.
This case falls in the heartland of the pro-veteran
canon. First, the WEP exception is plainly a provision
“for benefits to members of the Armed Services.” King,
502 U.S. at 220 n.9. Its sole purpose is to increase social security payouts to certain members of the “uniformed services,” by undoing reductions that the WEP
would otherwise impose. 42 U.S.C. § 415(a)(7)(A)(III).
In crafting the statute, Congress sought to resolve an
“arbitrary and inequitable” difference in how military
retirees were treated: The WEP reduced social security payouts based on certain forms of “active or inactive” “military service,” including by “reservists,” even
though the WEP did not reach other forms of military
service. H.R. Rep. No. 103-506, at 67. Congress designed the WEP exception to level the playing field,
20
and increase benefits to veterans, by exempting all
“military reserve duty” from the WEP. Id.
Second, there is no question that the phrase “service as a member of a uniformed service” may reasonably be read to cover official duties performed by all
members of the uniformed services, including dualstatus technicians. A majority of circuits to consider
the issue have so held. See Larson, 967 F.3d at 92224; Martin, 903 F.3d at 1165-66; Petersen, 633 F.3d at
637-38. With good reason: Dual-status technicians
are required to maintain membership in the National
Guard, hold a corresponding “military grade,” and
“wear the uniform appropriate for the member’s grade
and component.” 32 U.S.C. § 709(b)(2)-(4). As General
Clarke recently confirmed, that often makes them indistinguishable from active-duty reservists. Supra 12.
And the work that dual-status technicians perform—
including training, administration, and mission support, 32 U.S.C. § 709(a)(1)-(3)—is essential to the National Guard’s operations. Supra § I. That is why
Congress, at the Department of Defense’s urging, recently limited a planned reduction in the number of
dual-status technicians. Supra 10-11. It is also why
courts have held that the work of a dual-status technician is “irreducibly military.” Fisher, 249 F.3d at
439; Wright v. Park, 5 F.3d 586, 588 (1st Cir. 1993);
see infra § III. Reading the WEP exception’s broad
language to cover such essential military work is
hardly a stretch.
Several courts of appeals have concluded that another, narrower reading is plausible: that the WEP
exception covers only the “wholly” military work of
other reservists, while excluding the “irreducibly”
21
military work of dual-status technicians. See, e.g.,
Larson, 967 F.3d at 923-24. The meaning of that distinction is hard to grasp even in the abstract. “Wholly”
and “irreducibly” are synonyms, and as General
Clarke made clear, the difference between active-duty
reservists and dual-status technicians can be impossible to spot. Supra 12. More importantly, the distinction is difficult to map onto the WEP exception’s broad
language. The statute covers all “service,” without
qualification, performed “as a member of a uniformed
service.” It does not purport to exclude any type of
work by servicemembers, let alone irreducibly military work.
If this Court found that both of these readings
were facially plausible, they would present precisely
the type of interpretive choice that the pro-veteran
canon resolves in favor of potential “beneficiaries,”
King, 502 U.S. at 220 n.9—here, dual-status technicians. Congress crafted the WEP exception with the
understanding that its words would be read “liberally” in favor of servicemembers and veterans. Boone,
319 U.S. at 575. And it chose to define coverage with
the expansive phrase “service as a member of a uniformed service.” Given the “common-law” principles
at work, Impression Prods., 137 S. Ct. at 1536, Congress’s use of that language cannot be understood to
withhold benefits from certain National Guard members performing essential military work. Such a narrow exclusion is, at best, a tenuous gloss on the
statutory text. The pro-veteran canon compels a more
straightforward reading: When Congress said “service as a member of a uniformed service,” it meant
just that, and nothing less.
22
A final consideration further bolsters the pro-veteran canon’s role in this case: The Social Security Administration (SSA) has not issued a formal
interpretation of the WEP exception that might warrant Chevron deference. See Larson, 967 F.3d at 925.
This Court has not resolved how the pro-veteran
canon interacts with Chevron’s two-step framework.
But it need not do so here. There is thus no question
that the pro-veteran canon applies with full force.
Instead of formal rulemaking, the SSA offered a
glancing assessment of the WEP exception in an acquiescence ruling regarding Petersen. See Social Security Acquiescence Ruling, 77 Fed. Reg. 51,842 (Aug.
27, 2012). As the Ninth Circuit noted, that analysis is
not “detailed,” “careful” or “thorough.” Larson, 967
F.3d at 926. The SSA summarily asserted that the
WEP exception is better read not to cover the “civilian
work” of dual-status technicians—without offering
any explanation for why technicians’ work should be
considered “civilian” and not “military,” or why that
distinction matters under the statute’s broad language. See 77 Fed. Reg. at 51,843. The agency also
made no mention of the pro-veteran canon, let alone
a sound reason to defy it. Id. As the Ninth Circuit
acknowledged, these “few sentences” of conclusory
analysis are not “imbued with the ‘power to persuade.’” Larson, 967 F.3d at 926 (citing Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944)).
23
C. Courts of appeals have misconstrued the
WEP exception by inexplicably ignoring
the pro-veteran canon.
How have several courts of appeals overcome the
pro-veteran canon? Simple. They ignored it entirely.
Across the four opinions excluding dual-status technicians from the WEP exception, there is not a single
mention of the pro-veteran canon. Yet these courts
have invoked a range of other, less-illuminating interpretive rules to identify the best reading of the statute. In the decision below, for example, the Sixth
Circuit leaned on the proposition that “an exception
to the general rule … should be construed narrowly.”
Pet. App. 12a. In the court’s view, that meant Congress must have intended the WEP exception to be
stingy with benefits. Id. The pro-veteran canon shows
just the opposite, but the court never considered it.
Worse, the Ninth Circuit effectively inverted the
pro-veteran canon by faulting Congress for failing to
cover dual-status technicians in especially clear
terms. The court reasoned that “[i]f Congress had intended civilian technicians to receive retirement payments that were exempt from the WEP, … it could
have exempted payments ‘based on service by a member of a uniformed service,’” language the court considered more precise. Larson, 967 F.3d at 922. That
de facto clear-statement rule gets things backward.
Courts must identify a “clear indication” of congressional intent to disadvantage veterans, not to benefit
them. Henderson, 562 U.S. at 441.
This Court should correct this fundamental interpretive error. To the extent the Court discerns any
24
ambiguity in the WEP exception, it should hold that
the pro-veteran canon resolves the matter in Petitioner’s favor.
III. Excluding Dual-Status Technicians From
The WEP Exception Creates Inequitable
Conflicts With Other Legal Doctrines.
Finally, deeming dual-status technicians insufficiently “military” to qualify for the WEP exception
squarely clashes with how they are classified for purposes of other legal doctrines. One particularly inequitable example is the Feres doctrine. The Federal
Tort Claims Act (FTCA) waives the government’s immunity from many tort claims brought by federal employees. 28 U.S.C. §§ 1346(b), 2671-2680. Feres,
however, prohibits tort claims that “arise out of or are
in the course of activity incident to service” in the
armed forces. 340 U.S. at 146. That judge-made rule
has evolved to “bar all suits on behalf of service members against the Government based upon service-related injuries,” United States v. Johnson, 481 U.S.
681, 687-88 (1987), including those as severe as sexual assault, Doe v. United States, 141 S. Ct. 1498,
1499 (2021) (Thomas, J., dissenting from denial of certiorari). This Court and the courts of appeals have
also extended the reasoning of Feres to bar claims of
service-related discrimination. See, e.g., Chappell v.
Wallace, 462 U.S. 296, 299, 304 (1983) (barring Bivens
actions); Fisher, 249 F.3d at 439, 443 (barring Title
VII actions).
When it comes to curbing the right to sue, dualstatus technicians—no less than their colleagues in
the National Guard—are “service members” engaged
25
in military duties. Johnson, 481 U.S. at 687-88.
Courts of appeals have consistently applied the Feres
doctrine on that basis. They have barred dual-status
technicians from seeking judicial relief for serious
wrongs, including discrimination, retaliation, and
harassment on the basis of both race and gender. See
Overton v. New York State Div. of Mil. & Naval Affs.,
373 F.3d 83, 85 (2d Cir. 2004); Fisher, 249 F.3d at 43637. In one particularly egregious case, the Fifth Circuit refused to consider a technician’s claim that his
superior created a hostile work environment by displaying a noose in his office. Filer v. Donley, 690 F.3d
643, 649-50 (5th Cir. 2012).
The crux of these decisions is that the work performed by technicians is “irreducibly military in nature.” Fisher, 249 F.3d at 439; Wright, 5 F.3d at 588;
see Overton, 373 F.3d at 91 (“Despite the fact that
their employment may be denominated civilian, the
duties that they are performing are typically military
in nature.”). Time and again, courts have rejected the
“balkanization of technicians’ work” into military and
civilian components, holding that the “ties that bind
technicians’ civilian and military roles” cannot be
“disentangled” to limit the Feres doctrine’s reach.
Wright, 5 F.3d at 588; see Fisher, 249 F.3d at 439;
Overton, 373 F.3d at 92 (refusing to “disentangle a
plaintiff’s civilian and military duties” and apply the
Feres doctrine “only to suits arising out of the latter”);
see also Walch, 533 F.3d at 297 (impossible to “disentangle” dual-status technicians’ “military role and
command structure from their civilian employment”).
The technician subjected to the noose display could
not sue because his “military capacity” and “civilian
26
capacity” were indistinguishable. Filer, 690 F.3d at
649.
That longstanding body of law simply cannot be
reconciled with the recent decisions excluding dualstatus technicians from the WEP exception. The Sixth
Circuit in this case did precisely what it has refused
to do when applying Feres. It balkanized a technician’s work into “military” and “civilian” components.
Pet. App. 9a-13a; cf. Fisher, 249 F.3d at 439; Wright,
5 F.3d at 588. And it concluded that the civilian dimension means technicians do not serve “as” members of the National Guard, Pet. App. 11a-12a—even
though they labor as “service members” for purposes
of the Feres doctrine, Johnson, 481 U.S. at 687-88.
The Sixth Circuit tried to wave away the conflict by
noting that the Feres doctrine serves a different purpose from the WEP exception—namely, determining
“whether military personnel can sue their colleagues
or the government for injuries resulting from military
service.” Pet. App. 15a. But that is no answer. Whatever their ultimate purpose, courts in both contexts
considered the military nature of a dual-status technician’s service, and their conclusions on that front
are plainly irreconcilable.
These doctrinal clashes are yet more confirmation
that the WEP exception is best read to cover dual-status technicians. Under the status quo, technicians in
the Sixth Circuit and several other jurisdictions are
subject to significant downsides of military service—
including prohibition of workplace tort claims—yet
denied the upside of enhanced social security benefits.
That inequitable split cannot stand.
27
CONCLUSION
For the foregoing reasons, as well as those set
forth in Petitioner’s opening brief, this Court should
reverse the decision of the Sixth Circuit and hold that
the WEP exception covers payments to dual-status
military technicians for their work in the National
Guard.
Respectfully submitted,
Ned Hirschfeld
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
(212) 506-5000
May 27, 2021
Melanie L. Bostwick
Counsel of Record
Eric A. Shumsky
Monica Haymond
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street N.W.
Washington, D.C. 20005
(202) 339-8400
mbostwick@orrick.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.