OPM Issues Favorable Ruling During First Level Review

When an individual petitions the Office of Personnel Management ("OPM") for a determination whether that individual's failure to register with the Selective Service was "knowing and willful," there is typically a two-step process involved.  First, the individual requests the determination through his Agency, which in turn forwards the request and supporting materials to OPM for an initial determination.  In our experience, the initial determination invariably results in a finding of a knowing and willful violation, no matter what the circumstances.  Historically, it has been at the second level review -- conducted by OPM's Director or designee --  where we have achieved universally positive determinations for our clients with Selective Service registration issues.

Very recently, OPM issued a favorable determination for one of our clients at the first level of review.  Our client, a native born US citizen, failed to register with the Selective Service because, like many of our clients, he did not become aware of the registration requirement until well beyond the date at which he was still eligible to register (men must register prior to their 26th birthday).  Our client's circumstances were fairly unique - he had a troubled childhood, dropped out of school at an early age, and lived a relatively transient existence until he found his unique niche in life -- as a wildland firefighter for the US Forest Service.  

Departing from its past practices, OPM determined at the first level of review that our client's failure to register was not knowing and willful, thereby securing his job and career with the US Forest Service. Only time will tell whether this decision represents something more than a temporary shift in the way OPM has traditionally handled Selective Service determination cases.  

Favorable Selective Service Determination Obtained for High Level Government Official

Recently, we had the pleasure of representing a very high level government employee of one of the largest federal agencies in the U.S. Government.  Our client, who started his federal career 21 years ago as a low level postal employee, had worked his way up to the highest echelons of his present agency.  Unfortunately, our client had failed to register with the Selective Service when he immigrated to the United States in his early 20's and did not learn of the existence of the registration requirement until he was far too old to register.  

Our client's failure to register did not raise any red flags with his various federal employers until just recently, after 21 years of federal service.  We have had other clients who found themselves in similar situations with their positions in jeopardy after many years of loyal service to the U.S. government.  Agencies are supposed to verify Selective Service registration status during the hiring process.  These cases demonstrate that an employee's Selective Service registration status is subject to scrutiny at any time, even after many years of employment.

At the time he discovered his predicament, our client was being considered for a position that would require congressional confirmation, which further complicated the problem.  Fortunately, OPM timely determined that our client's failure to register was not a knowing and willful violation, thus clearing him to maintain his federal position.   

OPM Rules in Favor of Client Despite Fact That Selective Service Had No Record of Registration

On December 1, 2011, OPM issued a favorable determination on behalf of another client with a Selective Service registration issue.  Our client, who was born in the United States, specifically recalled mailing his registration form soon after he turned 18 years of age.  Unfortunately, the Selective Service System had no record of our client's registration.  We were unable to determine why Selective Service had not received our client's registration.  As noted by a GAO report prepared in the 80's, it was estimated that thousands of Selective Service records were input with incorrect social security numbers and/or names.  A copy of this report can be found here.   A similar error could certainly have accounted for the fact that Selective Service had no record of our client's registration.

Fortunately, we were able to obtain substantial corroborating evidence that our client did indeed mail his registration form through the testimony of family members, personal friends and others.  Upon reviewing that information and other supporting documentation, OPM ruled that our client's Selective Service registration status was not the result of a knowing and willful act on his part.  A copy of OPM's determination can be found here. 

What Does the Future Hold for Males Who Have Failed to Register with Selective Service?

In the past several years, we have handled a significant number of Selective Service "failure to register" cases and have received favorable rulings from the Office of Personnel Management ("OPM") on each.  It is certainly true that Selective Service cases have to be carefully prepared and presented correctly from an evidentiary standpoint.  However, in our experience, most of these cases also involve interesting and compelling facts.  Many of our clients who did not register with the Selective Service simply were not aware of the registration requirement.  Others had mailed in their registration cards, but for reasons which remain unknown, the Selective Service System had no record of their registration.  

Fortunately, John Berry, who was appointed by President Obama to serve as the Director of OPM in 2009, has handled these cases fairly and equitably since taking office.  This certainly was not always the case.  Director Berry's predecessors routinely ruled against individuals in Selective Service cases, even in situations where it was abundantly clear that there was not a knowing and willful failure to register.  

If the upcoming Presidential election brings about a change in the administration, a new Director will undoubtedly be nominated to replace Director Berry.  If this occurs, then there is a fair chance that OPM's philosophy with regard to these cases may well change, for the worse.  The take away from this is that if you have an issue with your Selective Service registration status, it may be advisable to address it sooner rather than later.       

Supreme Court Agrees to Hear Selective Service Case

On October 17, 2011, the United States Supreme Court agreed to hear Elgin et. al. v. United States Department of the Treasury, et. al., a case involving a group of federal employees who were terminated and/or had job offers rescinded because of their failure to register with the Selective Service.  Some of these employees, like many of our clients, simply never learned of the Selective Service registration requirement while they were still eligible to register.  One employee believed he had registered, but Selective Service had no record of his registration.  Again, a fairly common fact pattern.

The employees filed their lawsuit in the federal district court in Massachusetts claiming that 5 U.S.C. Sec. 3328 -- the federal statute that imposes a lifetime ban on federal executive agency employment for failing to register with the Selective Service -- was an unconstitutional Bill of Attainder and violated their constitutional right to equal protection on the basis of sex (the Selective Service registration requirement only applies to males).  Ultimately, the district court ruled against the employees and the matter was appealed to the First Circuit Court of Appeals.  The First Circuit vacated the district court's decision but remanded the case and directed the district court to enter a new judgment denying the employees' claims on the basis of a lack of subject matter jurisdiction.  In a nutshell, the Court ruled that the Civil Service Reform Act precluded the district court from granting equitable relief for constitutional claims.

The United States Supreme Court agreed to take the case and resolve the split that exists in the various federal Circuit Courts of Appeal on this issue.  Unfortunately, the issue that the Supreme Court will examine will be limited to whether federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees or whether the Civil Service Reform Act precludes such jurisdiction.  In other words, the interesting and potentially game changing constitutional challenges raised in the district court will not be an issue in the case before the Supreme Court.  However, in the event the employees are successful before the high court, you can expect these challenges will subsequently wind their way through the federal courts for the next several years.