By KELSEY REICHMANN

WASHINGTON (CN) — Against a lone dissent from Justice Neil Gorsuch, the Supreme Court ruled 8-1 Thursday against a military technician seeking dual-status pension payments as a federal civilian employee who also provided assistance to the National Guard. 

David Babcock worked as a dual-status military technician from 1975 to 2009 serving as a pilot and pilot instructor. While Babcock was a civilian employee, he was also required to maintain membership in the National Guard where he observed military protocols, wore a uniform indicating his rank, and was deployed on active duty to Iraq. 

The case concerns a unique provision known as the windfall elimination provision because of Babcock’s dual status as a civilian employee who also provided assistance to the National Guard member. The provision was enacted by Congress to compensate for retirees whose jobs exempted them from Social Security taxes resulting in artificially high earnings in benefits. When Babcock applied for Social Security benefits, the agency applied the windfall elimination provision lowering his payments by about $100 per month. Babcock argued that the provision should not apply to him. 

Babcock sued the agency, but a district court rule against him and the Sixth Circuit affirmed. 

The courts found that Babcock could not prevail in his suit because he served as a technician for the National Guard instead of as a member of the guard. 

“If a private employer hired only moonlighting police officers to be security guards, one would not call that employment ‘service as a police officer,” Justice Amy Coney Barrett wrote for the majority Thursday. “So too here: the fact that the Government hires only National Guardsmen to be technicians does not erase the distinction between the two jobs.” 

Barrett said the court was unpersuaded that Congress’ classification of technicians work as civilian was irrelevant to the uniformed-services exception. She continues that Babcock’s classification as a member of the National Guard doesn’t depend on factors like the uniform he wore to work but instead how Congress classified his job. 

“Babcock’s civil-service pension payments fall outside the Social Security Act’s uniformed-services exception because they are based on service in his civilian capacity,” Barrett wrote. 

Gorsuch said he had “trepidation” writing the lone dissent on such a narrow question but recognized that military technicians hold a unique position in federal employment. He said because these members sometimes serve on active duty, have to wear a guard uniform, and must maintain membership in the National Guard, they should be considered part of the National Guard. 

“Given these features of their employment, I would hold that dual-status technicians ‘serv[e] as’ members of the National Guard in all the work they perform for this country day in and day out,” the Trump appointee wrote. 

Drawing on Barrett’s analogy to police officers, Gorsuch argued that military technicians are more like part-time police officers than security guards. 

“I expect most Guardsmen who serve as ‘dual-status technicians’ — who come to work every day for the Guard, in a Guard uniform, and subject to Guard discipline — would consider all of their work to represent ‘service as . . . member[s]’ of the National Guard,” Gorsuch wrote. 

Original Story: Justices deny dual-status pension payments for Guard technician | Courthouse News Service

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Comment by LIUNA Local 1776

While unfortunate, this is the correct ruling. Technician service is not military service, and the Supreme Court has recognized as much. We'll have to see how this will affect retirees living within the boundaries of the 8th Circuit Court of Appeals, the only court that had ruled otherwise. We suspect the Social Security Administration will issue a new Acquiescence Ruling soon. 

Here's another article published today on the SCOTUS decision:

Justices Barrett and Gorsuch Clash Over Military Pensions (lawandcrime.com)

You can also check out previous LIUNA Local 1776 articles on this subject, below:

Explaining the 8th Circuit Court of Appeals WEP Decision (local1776.org)

6th Circuit Court of Appeals Rules WEP Applies to Dual Status Technicians (local1776.org)

GovExec: Lawmakers Push to Fix Controversial Tax Rule Affecting Federal Retirees (local1776.org)