[Federal Register Volume 87, Number 180 (Monday, September 19, 2022)]
[Notices]
[Pages 57246-57247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20185]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2022-0006]


Rescission of Social Security Acquiescence Ruling 12-1(8)

AGENCY: Social Security Administration.

ACTION: Notice of Rescission of Social Security Acquiescence Ruling 12-
1(8)--Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011)--Whether a 
National Guard Technician Who Worked in Noncovered Employment Is Exempt 
from the Windfall Elimination Provision (WEP)--Title II of the Social 
Security Act.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2) and 404.985(e)(1), the 
Commissioner of Social Security gives notice of the rescission of 
Social Security Acquiescence Ruling (AR) 12-1(8).

DATES: We will apply this rescission notice on September 19, 2022.

FOR FURTHER INFORMATION CONTACT: Stacey W. Harris, Office of the 
General Counsel, Office of Program Law, Social Security Administration, 
6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-9180, or 
TTY 410-966-5609, for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: An AR explains how we will apply a holding 
in a decision of a United States Court of Appeals that we determine 
conflicts with our interpretation of a provision of the Social Security 
Act (the Act) or regulations when the Government has decided not to 
seek further review of the case or is unsuccessful on further review. 
As provided by 20 CFR 404.985(e)(1), we will rescind an AR as obsolete 
and apply our interpretation of the Act or regulations if the Supreme 
Court overrules or limits a circuit court holding that was the basis of 
an AR.
    On August 27, 2012, we issued AR 12-1(8) to reflect the holding of 
the United States Court of Appeals for the Eighth Circuit in Petersen 
v. Astrue, 633 F.3d 633 (8th Cir. 2011).\1\ The Eighth Circuit held 
that the Civil Service Retirement System (CSRS) payments to dual-status 
National Guard technicians are based wholly on work ``as a member of'' 
a uniformed service pursuant to 42 U.S.C. 415(a)(7)(A)(III) and 
therefore qualify for the uniformed services exception to the windfall 
elimination

[[Page 57247]]

provision (WEP) of the Act. The Eighth Circuit rejected our 
interpretation of 42 U.S.C. 415(a)(7)(A)(III) that monthly payments 
based on noncovered civilian employment, including the CSRS payments to 
dual-status National Guard technicians, are subject to the WEP.
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    \1\ 77 FR 51842, corrected at 77 FR 54646 (September 5, 2012).
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    On January 13, 2022, in Babcock v. Kijakazi, 142 S. Ct. 641 (2022), 
the Supreme Court upheld our interpretation of 42 U.S.C. 
415(a)(7)(A)(III) that the CSRS payments to dual-status National Guard 
technicians do not qualify for the uniformed services exception to the 
WEP because they are not based wholly on the technicians' service as a 
members of a uniformed service. The Supreme Court explained that even 
though dual-status technicians must maintain National Guard membership 
and wear military uniforms, their technician work is not performed 
``as''--in the role, capacity, or function of--a member of the National 
Guard. ``[T]he role, capacity, or function in which a technician serves 
is that of a civilian, not a member of the National Guard.'' 142 S. Ct. 
at 645. In addition, the Court explained, Congress explicitly 
classified the dual-status technicians as civilian employees of the 
Federal government. Id. at 646.
    Because, in Babcock, the Supreme Court rejected the holding in 
Petersen by upholding our policy of applying the WEP to the CSRS 
payments of dual-status National Guard technicians, we are rescinding 
AR 12-1(8) in accordance with 20 CFR 404.985(e)(1).

(Catalog of Federal Domestic Assistance Program Nos. 96.002, Social 
Security-Retirement Insurance; and 96.004, Social Security-Survivors 
Insurance)

    The Acting Commissioner of Social Security, Kilolo Kijakazi, Ph.D., 
M.S.W., having reviewed and approved this document, is delegating the 
authority to electronically sign this document to William P. Gibson, 
Federal Register Liaison for SSA, for purposes of publication in the 
Federal Register.

William P. Gibson,
Federal Register Liaison, Office of Legislation and Congressional 
Affairs, Social Security Administration.
[FR Doc. 2022-20185 Filed 9-16-22; 8:45 am]
BILLING CODE 4191-02-P