Dual status technician subject to WEP reduction says Second Circuit
Tuesday, April 20, 2021

Dual status technician subject to WEP reduction says Second Circuit

By Payroll and Entitlements Editorial Staff

The Social Security Act reduces retirement benefits for a person who receives a monthly payment based, at least in part, on income that is not subject to Social Security taxes. However, the reduction does not apply if that payment is based wholly on work performed as a uniformed service member. Here, the claimant received a federal civil service pension from his work in the National Guard as a "dual status technician." A dual status technician is a federal civilian employee who is required to maintain membership in the National Guard while working in that role. He applied for Social Security benefits based on his years of covered military employment. The agency reduced the claimant’s benefits under the windfall elimination provision (WEP) due to his receipt of a monthly civil service retirement pension, which was based on his noncovered civil service role. The claimant filed suit, challenging the agency’s application of the WEP. The district court focused on the position’s military characteristics and held that the claimant’s pension qualified as a payment based wholly on service as a member of a uniformed service. The district court specifically rejected the argument that the technician position includes both civilian and military components. The government urged reversal, contending that the plain meaning of the provision, along with its statutory context, make clear that a dual status technician’s federal civil service pension is not based wholly on military service. Noting that five other circuits have held that a civil service pension based on work as a dual status technician does not trigger the uniformed services exception, the Second Circuit reversed the decision of the district court. The court concluded that the plain meaning of the statute dictates that the claimant’s civil service pension was not a payment based exclusively on work performed in the role of a uniformed service member. Although the claimant worked for the National Guard, his employment meant he was assigned to a civilian position. Congress defined dual status technicians as "federal civilian employees" and assigned distinct civilian attributes to such individuals. Indeed, that classification made the claimant eligible for his pension. The decision of the district court was reversed (Stephen Linza v. Commr., CA-2, No. 19-2766. March 8, 2021).

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