Latest Case: Kientz v. Commissioner, SSA (Civil Procedure)

The Oldest Republican Pander in the Book: “Do It for Our Children and Grandchildren”

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan reacts to a comment by Texas Lieutenant Governor Dan Patrick that older people should be “willing to take a chance on [their] survival in exchange for keeping the America that all America loves for [their] children and grandchildren.” Buchanan points out that Patrick’s suggestion has been rightly mocked but that it is not usual for Republicans to claim, hypocritically, that older people should make sacrifices for younger generations.

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Kientz v. Commissioner, SSA

Docket: 18-3240

Opinion Date: April 1, 2020

Judge: Carson

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Military Law, Public Benefits

Plaintiff Steven Kientz spent many years as a "dual status" technician with the Kansas Army National Guard, where he worked as a mechanic on electronic measurement equipment. Plaintiff’s position required him to simultaneously serve as a member of the National Guard, a second job with separate pay and separate responsibilities. In retirement, Plaintiff receives a monthly pension payment under the Civil Service Retirement System based on his service as a dual status technician. Plaintiff also receives Social Security retirement benefits based on contributions he made to the Social Security system from his separate pay as a National Guard member. The issue this case presented for the Tenth Circuit's review centered on whether a dual status service technician’s civil service pension was “based wholly on service as a member of a uniformed service” under 42 U.S.C. 415(a)(7)(A). After review, the Court concluded Plaintiff's civil service pension is not “wholly” based on service as a member of a uniformed service, and his pension payments were therefore subject to the Windfall Elimination Provision ("WEP"). Plaintiff’s dual status technician work was at least partially distinct from the performance of his military duties. And Plaintiff received separate compensation and separate pensions for his performance of those distinct roles. The Court concurred with the district court and Social Security Administration that Plaintiff's Social Security retirement benefits were subject to the WEP.