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Winds of change?

The upcoming Presidential election promises to be an interesting spectacle on many levels.   Either candidate could usher in sweeping changes in foreign and domestic policy.  While there is much uncertainty about the nature of these changes, one thing is certain -- there will be a change in administration and, depending on which candidate assumes office, there could be a complete replacement of the senior leadership at OPM.   Why does this matter?  While OPM has been unfailingly fair in its adjudication of Selective Service cases during the Obama administration, such was not the case during the Bush administration, when OPM routinely issued adverse determinations in Selective Service failure to register cases -- even in cases involving veterans who had served honorably in the military but who had failed to register. 

The takeaway is simple.  If you have a Selective Service issue, you would be well advised to prepare your case for submission to OPM now.  In my view, a Trump victory may well resurrect the Bush-era mindset at OPM, which does not bode well for people who have failed to register with the Selective Service System.



Selective Service Case Update

Over the course of the past year, I have handled a number of Selective Service cases that were successfully adjudicated by OPM.  Many of these cases had a now very familiar fact pattern -- a foreign-born client entering the United States with no prior exposure to the Selective Service System and its registration requirement and who did not learn of the registration requirement before reaching their 26th birthday.   Federal employees or applicants for federal employment who have had similar experiences have an excellent chance to win their case before OPM if it is presented correctly.  

While most of my Selective Service cases this year were fairly routine, some did involve unique facts.  In one case, my client held a non-immigrant F-1 student visa when he entered the country in 1986 to attend college.  The client received correspondence from the Selective Service soliciting his registration (the Selective Service does not notify every eligible male of their obligation to register) which the client returned noting that he was not required to register because held a valid non-immigrant student visa.  When my client was forced to withdraw from college shortly thereafter, his visa lapsed, triggering an obligation to register with the Selective Service.  Not surprisingly, my client was not aware that the change in his immigration status triggered a duty to register.  This case is currently ongoing.

I am handling another case with similar facts, but with an additional twist.  My client, after the lapse of his F-1 student visa caused by transitioning to a part-time schedule in college, also applied for asylum due to turmoil in his native country.  My client reasonably believed that he had no duty to register while his application for asylum was pending.  Much later in life, and to his shock, he learned that despite his application for asylum, the lapse of his visa triggered an obligation to register.  This case also remains pending.

In another interesting case, my client, a naturalized foreign-born male, submitted his Selective Service registration card while attending high school, but the Selective Service System inexplicably had no record of his registration.  As an aside, I have handled a number of cases for clients who recall registering yet the Selective Service System has no record of receiving their registration.  In today's digital age where registration is typically accomplished on-line, this is much less common, but before the internet, registration cards were commonly lost or mangled in the mail or simply mishandled by Selective Service personnel.   In any event, my case had one further wrinkle -- my client became a commissioned officer in the U.S. Navy after his 26th birthday.  In this case, OPM logically found that my client did not knowingly or willfully fail to register with the Selective Service.

More to come.....


32 Year Old Mystery Solved -- Selective Service Admits Mistake

Recently, I had the pleasure to work with a 50 year old client who worked as a consultant to the U.S. government testifying as an expert witness in complex financial matters.  Although my client had worked as a consultant to the U.S. government for many years, one of his clients, the IRS, had discovered during a routine background investigation that the Selective Service had no record of his registration.  As such, my client was advised that he could no longer perform services on behalf of the IRS.  

This, by the way, is an increasingly frequent practice of federal agencies.  Today, many agencies require contractors to complete some of the same paperwork that federal employees complete during the onboarding process, including the Declaration for Federal Employment -- better known as the OF 306. The OF 306 inquires whether the applicant has registered with the Selective Service.  Regardless of how the applicant responds, the Agency will typically electronically verify whether the applicant has in fact registered with the Selective Service.  If the Agency determines that the applicant has not registered, the applicant will be deemed ineligible for federal service -- as an employee or contractor.

In this case, my client had answered "no" on the OF 306 when asked whether he had registered. Unfortunately, my client misunderstood the question -- he had, in fact, registered 32 years ago when he was 18 years of age -- and he had a very specific recollection of doing so.   However, the Selective Service System had no record of his registration.  As a result, my client was barred from performing further services for the IRS and his entire consulting practice with the federal government was in jeopardy.

After finding me on the internet, my client immediately engaged my services to secure a determination that he had not willfully and knowingly evaded his Selective Service registration obligation.  While performing the standard fact gathering interview, I was certain that my client had in fact registered and suggested that he contact the Selective Service directly to determine if somehow a mistake had been made during the registration process.  This is fairly standard advice to new clients who claim that they did in fact register -- and I have had many clients in this situation.  However, to date, none of these inquiries to Selective Service have been fruitful.

Remarkably, when my client called Selective Service, he was astounded to learn that indeed a mistake had been made and that the Selective Service had received his registration 32 years ago.  The Selective Service employee immediately corrected the error and my client was cleared to resume his consulting practice with the IRS.  A first.


VA and FAA Applicants and Employees Beware!

On this blog, I have written extensively about the Selective Service cases successfully handled before OPM. During the course of the past four or so years, we have handled over 50 cases involving clients who had failed to register with Selective Service.  In all of these cases, OPM determined that our clients had not knowingly and willfully evaded their obligation to register.

Unfortunately, this long string of success was broken in 2 cases -- one involving a VA physician and one involving an applicant for a position with the FAA.   The problem lay not with the facts -- both cases involved individuals who simply had not learned about the existence of the Selective Service registration obligation prior to attaining 26 years of age.  As in every Selective Service case we have handled, we prepared documentation establishing, beyond a preponderance of the evidence, that our clients had not knowingly or willfully avoided registering with the Selective Service.  

The problem was that OPM was not the Agency that made the decision regarding our clients' Selective Service registration status.  As set forth in 5 CFR 300.705, OPM is the Agency that makes this decision in the vast majority of cases.   Unfortunately, these 2 cases were the exception to this general rule.

In the case involving the VA physician, the physician was not a Title 5 employee and was designated as a Title 38 employee.  The consequence of this designation was that the VA -- not OPM -- would retain the case and make the determination whether the failure to register with the Selective Service was knowing and willful.  Unfortunately, disregarding the facts and clear, on-point precedent from decisions issued by OPM the VA held that our client's failure to register was knowing and willful, thus creating at least a temporary bar to federal employment.  Our client's only recourse would be to apply for a Title 5 position outside of the VA and have OPM re-examine the circumstances underlying his failure to register.  The takeaway from this case is that the VA -- a veteran's organization -- applies an unfair and perhaps insurmountable standard when considering these cases.

The case involving the FAA employee involved another strange twist.  This case presented a very typical fact pattern involving an individual who had not learned about the existence of the Selective Service registration requirement while eligible to register.  There is abundant evidence supporting the fact that our client did not knowingly or willfully avoid his obligation to register.  In response to our request that the Agency forward this matter to OPM for consideration, the FAA claimed in pursuant to Section 347 of the 1996 DOT Appropriations Act, the FAA is exempt from most of the requirements set forth in Title 5 of the US Code as well as 5 CFR 300.705 (the regulation requiring federal agencies to forward Selective Service cases to OPM for adjudication).    We are researching whether the legislative history of the 1996 DOT Appropriations Act is consistent with the FAA's position in this case -- and we believe it is not.  Nonetheless, the FAA refused to forward the case to OPM for adjudication, refused to consider the overwhelming evidence that our client had not knowingly or willfully avoided registering and summarily made an adverse determination.  As with our VA client, this unfair determination will have the effect of barring our client from federal service until he applies for another position outside of the FAA that is subject to Title 5.


Recent Selective Service Cases

It has been some time since I updated the Selective Service portion of the blog.   Over the course of the past year, I have continued to handle a number of Selective Services cases that were adjudicated favorably by OPM.  These cases involved applicants for federal positions who were deemed ineligible for federal service due to their failure to register with the Selective Service and a contractor who worked at a federal facility who was flagged for not having registered.  These cases involved various agencies, including the US Forest Service, Voice of America, Department of Defense and Department of Energy.  

Most of these cases followed the typical fact pattern we have seen in many previous cases.  Many involved clients born outside of the United States.  Others involved clients born and raised in the United States.  In each of these cases, we were able to convince OPM that our client's failure to timely register with the Selective Service was not knowing and willful.  With that determination, each of these individuals was deemed eligible for federal employment.

Several cases did have unusual wrinkles.   One case involved a client who recalled registering while attending high school many years ago; however, the Selective Service Agency had no record of his registration.  We were able to obtain the affidavit of a class mate, who was active Air Force, who recalled our client's registration from their high school days.  With this information, OPM determined that the fact that the Selective Service Agency had no record of our client's registration did not result from a knowing and willful act on the part of our client.  In another case, our client had indeed registered -- but 2 years late when he was 28 years of age.  Selective Service had our client's registration card but did not deem him timely registered.  On these facts, OPM determined that it was clear that our client had not intentionally avoided registering and deemed  him eligible for federal employment.