I 

112TH CONGRESS 

1ST SESSION H. R. 2797 

To amend title II of the Social Security Act to repeal the windfall elimination 

provision and protect the retirement of public servants. 

IN THE HOUSE OF REPRESENTATIVES 

AUGUST 5, 2011 

Mr. BRADY of Texas (for himself, Mr. MARCHANT, Mr. SCHOCK, Mr. LONG, 

Mr. OLSON, Mr. PAUL, and Mr. MCCAUL) introduced the following bill; 

which was referred to the Committee on Ways and Means 

A BILL 

To amend title II of the Social Security Act to repeal the 

windfall elimination provision and protect the retirement 

of public servants. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Public Servant Retire5 ment Protection Act of 2011’’. 

6 SEC. 2. REPEAL OF CURRENT WINDFALL ELIMINATION 

7 PROVISION. 

8 Paragraph (7) of section 215(a) of the Social Secu9 rity Act (42 U.S.C. 415(a)(7)) is repealed. 


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1 SEC. 3. REPLACEMENT OF THE WINDFALL ELIMINATION 

2 PROVISION WITH A FORMULA EQUALIZING 

3 BENEFITS FOR CERTAIN INDIVIDUALS WITH 

4 NON-COVERED EMPLOYMENT. 

5 (a) SUBSTITUTION OF PROPORTIONAL FORMULA FOR

6 FORMULA BASED ON COVERED PORTION OF PERIODIC

7 BENEFIT.— 

8 (1) IN GENERAL.—Section 215(a) of the Social 

9 Security Act (as amended by section 2 of this Act) 

10 is amended further by inserting after paragraph (6) 

11 the following new paragraph: 

12 ‘‘(7)(A) In the case of an individual whose primary 

13 insurance amount would be computed under paragraph 

14 (1) of this subsection, who— 

15 ‘‘(i) attains age 62 after 1985 (except where he 

16 or she became entitled to a disability insurance ben17 efit before 1986 and remained so entitled in any of 

18 the 12 months immediately preceding his or her at19 tainment of age 62), or 

20 ‘‘(ii) would attain age 62 after 1985 and be21 comes eligible for a disability insurance benefit after 

22 1985, 

23 and who first becomes eligible after 1985 for a monthly 

24 periodic payment (including a payment determined under 

25 subparagraph (F), but excluding (I) a payment under the 

26 Railroad Retirement Act of 1974 or 1937, (II) a payment 


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1 by a social security system of a foreign country based on 

2 an agreement concluded between the United States and 

3 such foreign country pursuant to section 233, and (III) 

4 a payment based wholly on service as a member of a uni5 formed service (as defined in section 210(m)) which is 

6 based in whole or in part upon his or her earnings for 

7 service which did not constitute ‘employment’ as defined 

8 in section 210 for purposes of this title (hereafter in this 

9 paragraph and in subsection (d)(3) referred to as ‘non10 covered service’), the primary insurance amount of that 

11 individual during his or her concurrent entitlement to such 

12 monthly periodic payment and to old-age or disability in13 surance benefits shall be computed or recomputed under 

14 this paragraph. 

15 ‘‘(B) The primary insurance amount of an individual 

16 described in subparagraph (A), as computed or recom17 puted under this paragraph, shall be— 

18 ‘‘(i) in the case of an individual who first per19 forms noncovered service after the 12th calendar 

20 month following the date of the enactment of the 

21 Public Servant Retirement Protection Act of 2011, 

22 the primary insurance amount determined under 

23 subparagraph (C), or 

24 ‘‘(ii) in the case of an individual who has per25 formed noncovered service during or before the 12th 


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1 calendar month following the date of the enactment 

2 of the Public Servant Retirement Protection Act of 

3 2011, the larger of— 

4 ‘‘(I) the primary insurance amount deter5 mined under subparagraph (C), or 

6 ‘‘(II) the primary insurance amount deter7 mined under subparagraph (E). 

8 ‘‘(C) An individual’s primary insurance amount de9 termined under this subparagraph shall be the product de10 rived by multiplying— 

11 ‘‘(i) the individual’s primary insurance amount, 

12 as determined under paragraph (1) of this sub13 section and subparagraph (D) of this paragraph, by 

14 ‘‘(ii) a fraction— 

15 ‘‘(I) the numerator of which is the individ16 ual’s average indexed monthly earnings (deter17 mined without regard to subparagraph (D)), 

18 and 

19 ‘‘(II) the denominator of which is an 

20 amount equal to the individual’s average in21 dexed monthly earnings (as determined under 

22 subparagraph (D)), 

23 rounded, if not a multiple of $0.10, to the next lower mul24 tiple of $0.10. 


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1 ‘‘(D)(i) For purposes of determining an individual’s 

2 primary insurance amount pursuant to clauses (i) and 

3 (ii)(II) of subparagraph (C), the individual’s average in4 dexed monthly earnings shall be determined, subject to 

5 clause (ii), by treating all recorded noncovered earnings 

6 (as defined in clause (iii)(I)) derived by the individual 

7 from noncovered service performed in each year after 1950 

8 as ‘wages’ (as defined in section 209 for purposes of this 

9 title), which shall be treated as included in the individual’s 

10 adjusted total covered earnings (as defined in clause 

11 (iii)(II)) for such calendar year together with amounts 

12 consisting of ‘wages’ (as so defined without regard to this 

13 subparagraph) paid during such calendar year and self14 employment income (as defined in section 211(b)) for tax15 able years ending with or during such calendar year. 

16 ‘‘(ii) In any case in which some or all of the earnings 

17 derived from noncovered service performed by an indi18 vidual during any calendar year after 1950 are not re19 corded noncovered earnings (as defined in clause (iii)(I)), 

20 for purposes of determining the individual’s average in21 dexed monthly earnings as described in clause (i), the 

22 amount of the individual’s adjusted total covered earnings 

23 (as defined in clause (iii)(II)) for such calendar year shall 

24 be deemed to be, in lieu of the amount determined without 


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1 regard to this clause, an amount equal to the quotient de2 rived by dividing— 

3 ‘‘(I) the sum of all adjusted total covered earn4 ings (determined without regard to this clause) of 

5 the individual for all calendar years after 1950, plus 

6 all recorded noncovered earnings which are paid to 

7 the individual during such calendar years (after ad8 justment under subsection (b)(3) as if such earnings 

9 were wages), by 

10 ‘‘(II) the number of calendar years after 1950 

11 for which there are, with respect to the individual, 

12 any earnings described in subclause (I). 

13 ‘‘(iii) For purposes of this subparagraph— 

14 ‘‘(I) The term ‘recorded noncovered earnings’ 

15 means earnings derived from noncovered service 

16 (other than noncovered service as a member of a 

17 uniformed service (as defined in section 210(m)) for 

18 which satisfactory evidence is determined by the 

19 Commissioner to be available in the records of the 

20 Commissioner. 

21 ‘‘(II) The term ‘adjusted total covered earnings’ 

22 means, in connection with an individual for any cal23 endar year, the sum of the wages paid to the indi24 vidual during such calendar year (as adjusted under 

25 subsection (b)(3)) plus the self-employment income 


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1 derived by the individual during any taxable year 

2 ending with or during such calendar year (as ad3 justed under subsection (b)(3)). 

4 ‘‘(iv) The Commissioner of Social Security shall pro5 vide by regulation for methods for determining whether 

6 satisfactory evidence is available in the records of the 

7 Commissioner for earnings for noncovered service (other 

8 than noncovered service as a member of a uniformed serv9 ice (as defined in section 210(m)) to be treated as re10 corded noncovered earnings. Such methods shall provide 

11 for reliance on earnings information which is provided to 

12 the Commissioner by employers and which, as determined 

13 by the Commissioner, constitute a reasonable basis for 

14 treatment of earnings for noncovered service as recorded 

15 noncovered earnings. In making determinations under this 

16 clause, the Commissioner shall also take into account any 

17 documentary evidence of earnings derived from non18 covered service by an individual which is provided by the 

19 individual to the Commissioner and which the Commis20 sioner considers appropriate as a reasonable basis for 

21 treatment of such earnings as recorded noncovered earn22 ings, except that such evidence provided by the individual 

23 shall be taken into account only to the extent that such 

24 evidence does not relate to earnings for service with re25 spect to which information regarding earnings has already 


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1 been obtained by the Commissioner from the employer and 

2 only to the extent that such evidence does not result in 

3 a reduction in the individual’s primary insurance amount 

4 as calculated under subparagraph (C). 

5 ‘‘(E)(i) For purposes of determining the primary in6 surance amount under this subparagraph pursuant to sub7 paragraph (B)(ii)(II)— 

8 ‘‘(I) there shall first be computed an amount 

9 equal to the individual’s primary insurance amount 

10 under paragraph (1) of this subsection, except that 

11 for purposes of such computation the percentage of 

12 the individual’s average indexed monthly earnings 

13 established by subparagraph (A)(i) of paragraph (1) 

14 shall be the percent specified in clause (ii), and 

15 ‘‘(II) there shall then be computed (without re16 gard to this paragraph) a second amount, which 

17 shall be equal to the individual’s primary insurance 

18 amount under paragraph (1) of this subsection, ex19 cept that such second amount shall be reduced by an 

20 amount equal to one-half of the portion of the 

21 monthly periodic payment which is attributable to 

22 noncovered service performed after 1956 (with such 

23 attribution being based on the proportionate number 

24 of years of such noncovered service) and to which 

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1 tled) for the initial month of his or her concurrent 

2 entitlement to such monthly periodic payment and 

3 old-age or disability insurance benefits. 

4 An individual’s primary insurance amount determined 

5 under this subparagraph shall be the larger of the two 

6 amounts computed under this clause (before the applica7 tion of subsection (i)). 

8 ‘‘(ii) For purposes of clause (i), the percent specified 

9 in this clause is— 

10 ‘‘(I) 80.0 percent with respect to individuals 

11 who become eligible (as defined in paragraph (3)(B)) 

12 for old-age insurance benefits (or became eligible as 

13 so defined for disability insurance benefits before at14 taining age 62) in 1986; 

15 ‘‘(II) 70.0 percent with respect to individuals 

16 who so become eligible in 1987; 

17 ‘‘(III) 60.0 percent with respect to individuals 

18 who so become eligible in 1988; 

19 ‘‘(IV) 50.0 percent with respect to individuals 

20 who so become eligible in 1989; and 

21 ‘‘(V) 40.0 percent with respect to individuals 

22 who so become eligible in 1990 or thereafter. 

23 ‘‘(F)(i) Any periodic payment which otherwise meets 

24 the requirements of subparagraph (A), but which is paid 

25 on other than a monthly basis, shall be allocated on a basis 


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1 equivalent to a monthly payment (as determined by the 

2 Commissioner of Social Security), and such equivalent 

3 monthly payment shall constitute a monthly periodic pay4 ment for purposes of this paragraph. 

5 ‘‘(ii) In the case of an individual who has elected to 

6 receive a periodic payment that has been reduced so as 

7 to provide a survivor’s benefit to any other individual, the 

8 payment shall be deemed to be increased (for purposes of 

9 any computation under this paragraph or subsection 

10 (d)(3)) by the amount of such reduction. 

11 ‘‘(iii) For purposes of this paragraph, the term ‘peri12 odic payment’ includes a payment payable in a lump sum 

13 if it is a commutation of, or a substitute for, periodic pay14 ments. 

15 ‘‘(G)(i) In any case in which the primary insurance 

16 amount would otherwise be calculated under subparagraph 

17 (E)— 

18 ‘‘(I) this paragraph shall not apply in the case 

19 of an individual who has 30 years or more of cov20 erage; and 

21 ‘‘(II) in the case of an individual who has more 

22 than 20 years of coverage but less than 30 years of 

23 coverage (as so defined), the percent specified in the 

24 applicable subdivision of subparagraph (E)(ii) shall 

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1 cent specified in the following table) be deemed to be 

2 the applicable percent specified in the following 

3 table: 

‘‘If the number of the 

individual’s years of The applicable 

coverage (as so defined) is: percent is: 

29 ....................................................................................................... 85

28 ....................................................................................................... 80

27 ....................................................................................................... 75

26 ....................................................................................................... 70

25 ....................................................................................................... 65

24 ....................................................................................................... 60

23 ....................................................................................................... 55

22 ....................................................................................................... 50

21 ....................................................................................................... 45. 

4 ‘‘(ii) For purposes of clause (i), the term ‘year of cov5 erage’ shall have the meaning provided in paragraph 

6 (1)(C)(ii), except that the reference to ‘15 percent’ therein 

7 shall be deemed to be a reference to ‘25 percent’. 

8 ‘‘(H) An individual’s primary insurance amount de9 termined under this paragraph shall be deemed to be com10 puted under paragraph (1) of this subsection for the pur11 pose of applying other provisions of this title. 

12 ‘‘(I) This paragraph shall not apply in the case of 

13 an individual whose eligibility for old-age or disability in14 surance benefits is based on an agreement concluded pur15 suant to section 233 or an individual who on January 1, 

16 1984— 

17 ‘‘(i) is an employee performing service to which 

18 social security coverage is extended on that date 

19 solely by reason of the amendments made by section 

20 101 of the Social Security Amendments of 1983; or 


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1 ‘‘(ii) is an employee of a nonprofit organization 

2 which (on December 31, 1983) did not have in effect 

3 a waiver certificate under section 3121(k) of the In4 ternal Revenue Code of 1954 and to the employees 

5 of which social security coverage is extended on that 

6 date solely by reason of the amendments made by 

7 section 102 of the Social Security Amendments of 

8 1983, unless social security coverage had previously 

9 extended to service performed by such individual as 

10 an employee of that organization under a waiver cer11 tificate which was subsequently (prior to December 

12 31, 1983) terminated.’’. 

13 (2) CONFORMING AMENDMENTS.— 

14 (A) Section 215(d)(3) of such Act (42 

15 U.S.C. 415(d)(3)) is amended— 

16 (i) by striking ‘‘subsection (a)(7)(C)’’ 

17 each place it appears and inserting ‘‘sub18 section (a)(7)(F)’’; 

19 (ii) by striking ‘‘subparagraph (E)’’ 

20 and inserting ‘‘subparagraph (I)’’; and 

21 (iii) by striking ‘‘subparagraph (D)’’ 

22 and inserting ‘‘subparagraph (G)(i)’’. 

23 (B) Section 215(f)(9)(A) of such Act (42 

24 U.S.C. 415(f)(9)(A)) is amended by striking 

25 ‘‘(a)(7)(C)’’ and inserting ‘‘(a)(7)(F)’’. 


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1 SEC. 4. EFFECTIVE DATE. 

2 The amendments made by this Act shall apply with 

3 respect to monthly insurance benefits for months com4 mencing with or after the 12th calendar month following 

5 the date of the enactment of this Act. Notwithstanding 

6 section 215(f) of the Social Security Act, the Commis7 sioner of Social Security shall recompute primary insur8 ance amounts to the extent necessary to carry out the 

9 amendments made by this Act. 

Æ 


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