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This SCOTUS case will determine the Social Security benefits of tens of thousands of National Guard members

  October 12, 2021 | By Stacy Cloyd, NOSSCR

On the morning of Wednesday, October 13, you can tune in to listen to live oral arguments in the case of Babcock v. Kijakazi. There will also be transcripts and an audio recording released soon after.

This case addresses the question of whether certain civilian employees of the National Guard, known as “military technician (dual status)” should have their pensions for this work considered “a payment based wholly on service as a member of a uniformed service” for the purposes of the Social Security Act’s windfall elimination provision, or WEP. This question affects the potential Social Security benefits of tens of thousands of National Guard members.

The Eighth Circuit decided that pensions of dual status military technicians are wholly based on service as a member of a uniformed service and the Windfall Elimination Provision should not apply. That allows technicians who live in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, to have higher Social Security benefits. But the Ninth, Tenth, Eleventh, and Sixth (Babcock’s home) circuits have all either said that the law dictates that the WEP should apply, or that the law is unclear but the Social Security Administration’s position of applying the WEP is reasonable.

It may take several months for the Supreme Court to issue a decision in the Babcock case. Commentary and an easy-to-navigate list of documents from the case are available on the SCOTUSblog website.

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