Pay shortage? Case involving former National Guard pilot awaits decision by the U.S. Supreme Court

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In 2014, former U.S. Army National Guard pilot David Babcock came to Bahrie Law because he discovered the Social Security Act was treating veterans differently depending on where they lived.

“The amount of money he would receive was under $10,000 and with a 25 percent attorney fee, it was not economical,” said attorney Ronald Bahrie. “But justice had to be more important than money. So, we agreed to take on the challenge to the Supreme Court of the United States. Estimates are that 50,000 similarly situated National Guard and Army veterans will benefit when we are successful.”

The petitioner, David Babcock, served as a National Guard pilot for more than 33 years, including active-duty deployment to Iraq. As required for all dual-status technicians, Babcock served in uniform, held a rank in the National Guard, maintained military fitness standards, and was subject to military supervision. Yet because his indisputably military role was also classified as partly civilian for federal employment purposes, the U.S. Court of Appeals for the Sixth Circuit held that pension payments resulting exclusively from his dual-status service were not “payment[s] based wholly on service as a member of a uniformed service.”

The case, according to attorney Bahrie, involves a simple statutory interpretation question.

“Under a provision of the Social Security Act known as a Windfall Elimination Provision (WEP), the government offsets an applicant’s Social Security benefits to account for other retirement payments that an applicant receives for employment during which he did not pay into Social Security,” Bahrie explained. “But WEP contains an exception if the person is receiving ‘a payment based wholly on service as a member of a uniformed service.’ The question in this case is whether service as a dual-status technician falls within the exception, and we will argue that the text requires the answer to be ‘yes.’

“The Sixth Circuit, and the others on its side of the split, rely on an interpretation that rewrites the statue,” Bahrie claimed. “They take the word ‘wholly’ in the uniformed-services exception to exclude dual-status technician employment because it has a civilian component and so is not wholly ‘service as a member of the uniformed service.’ In that reading, ‘wholly’ is applied to service rather than to payment.”

With that in mind, Bahrie knew the odds were steep that Babcock would prevail.

“With our experience and knowledge of the Sixth Circuit, we knew we would lose on application, reconsideration, Hearing, Appeals Council, Federal District Court, and the United States District Court for the Sixth District, and lose we did,” Bahrie said. “But this case and others like it had to be heard.

“The government’s position is deeply unjust and disrespectful to veterans who served as dual-status military technicians,” he indicated. “Dual-status military technicians play a critical role in maintaining the readiness of the National Guard and the Army and Air Force Reserves. They serve in uniform, observe military protocol, and are indistinguishable from active-duty personnel on post. They also stand ready to be deployed with their units for active-duty service, as Babcock demonstrated when he was deployed in Iraq and received numerous decorations, including the Bronze Star, Army Achievement Medal, and Global War on Terrorism Expeditionary Medal. And dual-status military technicians typically receive lower pay than their active-duty colleagues, making them a relatively inexpensive resource for the government to maintain our nation’s military readiness. No wonder, then, that even the Sixth Circuit recognized that “the position of a National Guard technician is irreducibly military in nature.”

Within 24 hours of the legal setback at the U.S. Court of Appeals, “we received five requests to help from Yale Law School, Harvard Law School and three Washington, D.C. firms with a worldwide presence,” according to Bahrie.

“They believed our fact pattern and interpretation of the law was correct and would help other veterans,” Bahrie said. “We partnered with Neil Katyal of Hogan Lovell in Washington, D.C. Neil Katyal was Solicitor General in the Obama Administration and has appeared in the Supreme Court of the United States 43 times. His assistance at SCOTUS was invaluable. We expect to review a favorable opinion sometime next year.”



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