On February 3, 2011, the United States Court of Appeals for the Eighth Circuit, in
Petersen v. Astrue, ruled against the Social Security Administration (SSA) concerning our policy on
applying the Windfall Elimination Provision (WEP) to National Guard technicians holding
dual status as civilian federal employees and military members of the National Guard.
The court held that the civilian work of a retired National Guard dual status technician
was service “as a member of a uniformed service.” The court considered the Civil Service
Retirement System (CSRS) pension of Petersen to be a “payment based wholly on service
as a member of a uniformed service” and, therefore, exempt from the WEP.
According to section 215(a)(7)(A) of the Social Security Act and Regulations 20 CFR 404.213(e)(9), the WEP does not apply to the benefits of a retired or disabled worker receiving
monthly payments based wholly on service as a member of a uniformed service.