Babcock v. Kijakazi

JUSTICE GORSUCH, dissenting.¶verify

As the only dissenter on this narrow question of statutory interpretation, I confess trepidation. Still, I cannot help but find compelling the arguments advanced by the petitioner before us and by the Eighth Circuit in Petersen v. Astrue , 633 F. 3d 633, 637–638 (2011).¶verify

Dual-status military technicians hold “a unique position in federal employment.” Ante, at 2. Not only do they sometimes serve on active duty, as the petitioner did. Babcock v. Commissioner of Social Security , 959 F. 3d 210, 212 (CA6 2020). By statute, they spend the rest of their time working for the Guard—on matters ranging from training others to administration to equipment maintenance. 10 U. S. C. § 10216(a)(1)(C); 32 U. S. C. § 709(a). At all times, they must “maintain membership” in the National Guard and wear a Guard uniform while on the job. 10 U. S. C. § 10216(a)(1)(B); 32 U. S. C. § 709(b). The authority to discharge or discipline these individuals, too, rests with the Adjutant General. §§ 709(d), (f ). 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. 42 U. S. C. § 415(a)(7)(A)(III).¶verify

I appreciate the analogy to police officers moonlighting as private security guards. Ante, at 6. But to my mind dualstatus technicians are more like part-time police officers employed in their outside hours by the same police department to train recruits, administer the precinct office, and repair squad cars—all on the condition that they wear their police uniforms and maintain their status as officers. I suspect most reasonable officers in that situation would consider the totality of their work to constitute “service as . . . member[s]” of the police force. So too here 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. I would honor that reasonable understanding and would not curtail servicemembers’ Social Security benefits based primarily on implications extracted from other, separate “bookkeeping” statutes. Ante, at 7.¶verify