WEP GPO Relief

SEPTEMBER 2006 - Courts Are Not The Answer - As Washington focuses more and more
upon the mid-term elections in November, the likelihood
of meaningful action on controversial domestic
issues, such as Social Security, lessens. This
has prompted some members to question whether it
would be more effective to challenge Social Security’s
Windfall Elimination Provision (WEP) and the Government
Pension Offset (GPO) in the courts, rather than
continuing the effort exclusively with the Congress.

They ask: Can’t the courts act quickly on
the issue and order the relief we need from these
laws? Here’s our answer.

“Unfortunately, treating a group of public
retirees differently under Social Security does not,
by itself, provide sufficient grounds to successfully
challenge these laws in court,” comments Association
Counsel Bill Rehrey. “Other organizations,
most notably NARFE (National Association of Retired
Federal Employees), have taken a long hard look at
this and concluded the chances of winning in the
courts are slight at best.”

According to NARFE’s analysis
of the issue, the federal courts do not apply the
same legal test in all cases, when called upon
to scrutinize and determine if a federal law unlawfully
discriminates against a group. For example, if
a group claims that it is being discriminated against
because of race or national origin, then the court
will require the law to satisfy its strictest test.

But in cases such as the WEP and
GPO, the federal court would apply a much less
stringent test. Under the “weaker” test, the court would uphold
the statute if there is a constitutional purpose
behind it and as long as the government had some “rational
basis” for treating a particular group differently.

Legal experts believe that the WEP
and GPO would satisfy the “weaker” test,
principally because it would be (and has been successfully)
argued that Congress has a legitimate concern in
strengthening the solvency of Social Security.
In fact, the GPO has twice been challenged and
twice been upheld by the courts, most notably in
the 1993 federal case titled Clifford v. Sullivan.

“We understand our members may not agree with
the courts and strongly believe that the WEP and
GPO are unfair and discriminatory,” comments
Rehrey. “But with the legal tests being what
they are, our resources can be much better spent
continuing to pursue a legislative remedy.”