Three Selective Service Failure to Register Clients Receive Clearance from OPM for Federal Employment

In the time since I last updated this blog, the Office of Personnel Management (“OPM”) issued decisions on three 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.

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. 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.

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 three 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.