Selective Service Blog

Another Favorable First Level Determination Issued by OPM

2012-03-23T14:15:32Z

As I have written previously, from a historical perspective, OPM has almost always issued negative determinations with regard to first level reviews in Selective Service failure to register cases, no matter how favorable the facts. While we have obtained favorable results in all of our Selective Service cases, it has been our experience that OPM will not issue favorable determinations until the second level review is conducted by OPM's Director or his designee. In January 2012, we obtained our first favorable first level determination. Yesterday, we received notice that another client also received a favorable first level determination -- i.e. a finding that his failure to register was not knowing and willful.

Our client, who works as a wildland firefighter on the west coast, actually submitted his Selective Service registration when he was approximately 18 years of age, but Selective Service had no record of receiving his registration card. Fortunately, our client's family was able to corroborate the fact that he had mailed his registration card and OPM determined that this was enough to establish by a preponderance of the evidence that his failure to register was not knowing and willful.

This case would appear to indicate that OPM is indeed giving Selective Service cases a more thorough and fair review at the first level -- a very welcome change to those individuals who have unknowingly failed to register with the Selective Service.

OPM Issues Favorable Ruling During First Level Review

2012-01-27T19:23:55Z

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

2011-12-20T20:35:06Z

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

2011-12-20T20:01:54Z

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?

2011-12-05T20:19:46Z

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

2011-11-15T21:26:31Z

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.

OPM Issues Another Favorable Ruling in Selective Service Failure to Register Case

2011-10-26T15:29:28Z

On October 14, 2011, OPM issued another ruling in favor of a client, finding his failure to register with the Selective Service was not knowing and willful. A copy of Director John Berry's determination can be found here. The fact pattern was very similar to the many cases we have handled involving a failure to register -- our client had immigrated to the United States when he was 15 years old and never discovered the existence of the Selective Service until he applied for citizenship. Unfortunately, by that time, he was 30 years old and his attempt to register was rejected because he was too old. Upon consideration of the evidence we submitted, including sworn declarations and other pertinent information, the Director of OPM agreed that our client's failure to register was not knowing and willful, thereby clearing the way for federal employment.

3 Selective Service Failure to Register Clients Receive Clearance From OPM for Federal Employment

2011-10-02T20:46:42Z

In the time since I last updated this blog, the Office of Personnel Management ("OPM") issued decisions on 3 appeals we are handling, finding in all cases that our clients' failure to register was not knowing and willful. The first case involved a difficult fact pattern involving a United States citizen who had lived the in the United States his entire lifetime. In this case, our client had actually performed a high school project involving Selective Service registration, and was told that his teacher would take care of mailing the registration card to Selective Service.

Unfortunately, the teacher apparently never mailed the registration card, a fact that our client did not learn until many years later when he applied for federal financial aid. The teacher had passed away many years ago and there were no witnesses available to corroborate what had transpired in the classroom. The Selective Service System had also mailed multiple notices to our client reminding him of his obligation to register; however, our client had received none of the notices. After submitting a comprehensive package of sworn declarations and other documentary evidence, OPM agreed with our position that our client's failure to register was not knowing and willful. A copy of the Director's decision can be found here.

The second case involved a Department of Homeland Security employee who had immigrated to the United States from Nigeria when he was 18 years of age. Although our client was not aware of the existence of the Selective Service and its registration requirements when he arrived in the country, he came to the US on an F-1 Student Visa (non-immigrant) and was not required to register. At the age of 24, our client became a conditional permanent resident of the United States and, at that point, was required to register. The Selective Service also mailed out multiple notices to our client regarding his obligation to register; however, our client had moved frequently and did not receive these notices.

Our client discovered the existence of the Selective Service when he applied for student financial aid. Unfortunately, by this time, our client was over 26 years of age and was no longer eligible to register. Despite his failure to register, our client was subsequently hired by DHS in spite of the fact that he disclosed his failure to register on his OF 306. Some time later, our client received a notice of proposed removal based upon his failure to register. After an adverse initial determination (something that, in our experience, almost always occurs), we appealed to the Director of OPM who agreed that our client's failure to register was neither knowing nor willful, and our client was able to maintain his employment with DHS. A copy of the Director's decision can be found here.

The last case followed a common fact pattern. Our client was born in Ethiopia and was forced to flee the country and became a political refugee in the United States when he was 19 years old. Our client first learned of the Selective Service registration requirements when he was 31 years old and too old to register. Much later in life, our client applied for a position with the United States Department of Treasury/IRS and was rejected after disclosing his Selective Service status on his application. In September 2008, our client received a negative initial determination from OPM. We were retained approximately 3 years later and appealed the initial determination to the Director of OPM. After considering our evidence, the Director agreed with our position that our client's failure to register was neither knowing nor willful. As a result, our client is now eligible for federal employment. A copy of the Director's decision can be found here.

OPM Issue Favorable Ruling In Selective Service Failure to Register Case Involving Natural Born U.S. Citizen

2011-05-16T21:46:31Z

On April 7, 2011, the Office of Personnel Management ("OPM") issued a favorable decision in another Selective Service "failure to register" case we handled. Unlike many of our other previous Selective Service cases involving individuals born in other nations, our client was a natural born citizen of the United States.

Our client in this case had been employed by the U.S. Mint for many years when he was notified there was a problem with his Selective Service registration status which jeopardized his continued eligibility for federal employment. There was no evidence that our client had registered (however, he had attempted to enlist in the military when he was 18 -- a fact we were able to point to as evidence that his failure to register was not knowing or willful). Despite being born in the United States, our client never learned of the Selective Service registration requirement while he was eligible to register. In a nutshell, by detailing our client's less than ideal upbringing and lack of a stable family environment, we were able to convince OPM that his failure to register was not knowing or willful. As a result, our client was able to continue his career with the U.S. Mint.

Failure to Register with Selective Service -- OPM Rules in Favor of 2 Clients

2011-02-16T17:13:50Z

OPM Rules in favor of 2 Clients in Selective Service Failure to Register Cases