Law Office of Marc J. Smith, LLC
Employment Law and Litigation Counsel

Selective Service Blog

If you are a male between 18 and 25 years of age, the Military Selective Service Act requires you to register with the Selective Service System — the Agency responsible for maintaining information on those potentially eligible for military service in the event the United States government deems it necessary to implement a military draft.  Most male U.S. citizens and male immigrant non-citizens between the ages of 18 and 25 are required by law to have registered within 30 days of their 18th birthday.  If you are a male between 18 and 25 years of age, you may register on-line by clicking here.  You can check to see if you are properly registered here.

Perhaps surprisingly, many non-citizens are required to register, including illegal aliens, legal permanent residents, and refugees.  Noncitizens who are notrequired to register with Selective Service include men who are in the U.S. on student or visitor visas, and men who are part of a diplomatic or trade mission and their families.  Generally, if a male non-citizen takes up residency in the U.S. before his 26th birthday, he must register with Selective Service.  The Selective Service System has published a useful chart detailing who must register.

Fortunately, the U.S. government has not in recent history actively pursued prosecution of individuals who have failed to register with the Selective Service System.  However, there are significant other penalties that are imposed upon individuals who were required to register, but fail to do so before their 26th birthday.  For example, eligible males who have failed to register may not be able to obtain federal student loans or grants.  Failing to register when required to do so also results in a permanent bar for federal employment unless the individual can demonstrate to the Office of Personnel Management, by a preponderance of the evidence, that their failure to register was not “knowing and willful.”  You have two opportunities to do this — an “initial determination” (which almost always results in an adverse decision) and an appeal to the Director of the OPM.  It is therefore vital to ensure that your case is thoroughly prepared and presented to OPM in the proper form.

VA Continues to Make Irrational Selective Service Decisions

As previously written in this blog, if you are male and have not registered with the Selective Service and are considering a Title 38 position with the US Department of Veterans Affairs — don’t bother. Despite its critical shortage of medical professionals, the VA continues to turn away well-qualified medical professionals who did not register with the Selective Service System — even when it is proven by clear and convincing evidence (which is higher than the preponderance of evidence standard the VA purports to apply) that the failure to register was not knowing and willful.

In a recent case, we represented a young physician who applied for and was accepted for a residency at a program which included a rotation at a VA hospital in Wisconsin. Unfortunately, after forgoing other opportunities and moving to Wisconsin with his spouse (also a resident), the VA discovered that our client was not registered with the Selective Service and informed him that he was not eligible to participate in their program because of his registration status. We timely appealed that decision to the VA (OPM does not hear cases involving Title 38 employees). During this process, we assembled a virtual mountain of sworn declarations from family members, school administration officials and others proving that our client simply never learned about the registration requirement while eligible to register. We also had written support from the VA hospital and from veterans organizations. Our client even submitted to and passed a lie detector test conclusively establishing that he never learned of his obligation to register.

Despite all of this evidence, the VA summarily rejected our client’s explanation. In a nutshell, the VA based its decision on the premise that every male is “assumed to know” of the obligation to register — a baseless and unreasonable rationale that flies in the face of well-known statistical facts, basic logic and ignores the fact that OPM routinely makes findings on identical facts that the failure to register was not knowing and willful. We were advised by a VA official involved in the process that VA’s position with regard to Selective Service cases originates within the Office of General Counsel. The VA needs to wake up and take heed of the fact that its irrational decisions are actually damaging the mission of the Agency and hurting veterans.

In the end, the VA’s arbitrary actions have caused it to lose yet another doctor to care for veterans who desperately need medical care.

Marc Smith
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 the U.S. Office of Personnel Management (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.

Marc Smith
32-Year-Old Mystery Solved – Selective Service Admits Mistake

I recently 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 prior — when he was 18 years of age — and 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 prior.  The Selective Service employee immediately corrected the error and my client was cleared to resume his consulting practice with the IRS.  A first.


Marc Smith
VA and FAA Applicants Beware!

On this blog, I have written extensively about the Selective Service cases successfully handled before the U.S. Office of Personnel Management (OPM). During the course of the past four years or so, 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 with two cases — one involving a Veterans Affairs (VA) physician and one involving an applicant for a position with the Federal Aviation Association (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 two cases were exceptions 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 — applied an unfair and perhaps insurmountable standard when considering this case.

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 was 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 U.S. 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.

Marc Smith
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 the U.S. Office of Personnel Management (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 U.S. Forest Service, Voice of America, Department of Defense and Department of Energy.

Most of these cases followed the typical fact pattern 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 classmate, 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 two 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.

Marc Smith
Favorable Second-Level Determination Obtained for Federal Employee

By letter dated August 7, 2012, the U.S. Office of Personnel Management (OPM) issued a determination on appeal that one of our clients — a U.S. Department of Army employed based in Oklahoma — had not knowingly evaded his obligation to register with the Selective Service System.

This case involved a U.S. born citizen who had been employed by the Department of Army as a civilian since 2009.  Interestingly, our client had disclosed the fact that he was not properly registered when he completed his OF 306 during the application process, but was hired anyway.  In December 2010, OPM determined on a first-level review that the evidence submitted by our client failed to establish by a preponderance of the evidence that his failure to properly register was not the product of a knowing and willful act.

Following our engagement, the Army put our client on administrative leave pending his appeal to OPM.   We were able to convince the Agency to reinstate our client (as is appropriate) pending OPM’s review of the merits of our appeal in which we were able to prove that our client’s father —  himself an honorably discharged U.S. Army veteran — submitted a registration form for his son soon after he turned 18.  OPM determined that we had submitted sufficient evidence to establish that the fact that Selective Service had no record of our client’s registration was not the product of a knowing and willful act on the part of our client.

This case is another example of how OPM is paying close attention to the merits of these cases and, when supported by proper evidence, routinely issues determinations that absolve individuals of intentionally avoiding their obligation to register with the Selective Service.

As a side note, OPM issued its ruling on this appeal in about five weeks — which, when compared to typical appeals, is extraordinarily fast.   Further, as I have mentioned in the past, it is entirely possible that a change in the administration after November’s elections could bring about a change in leadership and philosophy at OPM regarding Selective Service cases.  Individuals who have failed to timely register with the Selective Service System should therefore strongly consider putting their cases before OPM now in the event the administration does change in the near future.

Marc Smith
OPM Issues Favorable Determinations In Failure to Register Cases

During the course of the past four months, the U.S. Office of Personnel Management (OPM) has issued favorable determinations in three separate Selective Service cases involving individuals who failed to register with the Selective Service. One of these cases involved a very typical fact pattern — our client was born in a foreign nation and moved to the United States to attend college when he was in his 20’s.  Our client was initially on a non-immigrant F-1 Visa which expired prior to his 26th birthday — at which time he was required to register, but did not.  As in many other cases, our client did not learn about the Selective Service registration requirement during college, work or from any other source until well after his 26th birthday.

The other two cases involved clients who were born in the U.S. and were U.S. citizens.  One client moved abroad with his family when he was six years old and did not return to the United States until after his 26th birthday.  The other client, whose parents were both in the U.S. military, dropped out of high school and moved out of his family home at an early age and simply never discovered the existence of the Selective Service and its registration requirement until he was in the process of applying for federal employment and was rejected because he had failed to register prior to his 26th birthday.

In all three cases, we submitted strong supporting evidence demonstrating that our clients were simply unaware of the existence of the Selective Service and its registration requirement.   In one case, OPM agreed with our position at the first-level review and, with regard to the other two cases, OPM agreed on requests for reconsideration that our clients’ failure to register with the Selective Service was not knowing and willful.  All three clients have now been cleared for federal employment.

Marc Smith
Supreme Court Issues Decision In Selective Service Case

As reported last fall on this blog, 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.

Unfortunately, the appeal did not involve the merits of the constitutional issues raised by the former employees who claimed that the registration requirement set forth in the Military Selective Service Act is an unconstitutional  bill of attainder and discriminates on the basis of gender because only males are required to register.  Rather, the appeal only concerned the narrow issue 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.

On June 11, 2012, the U.S. Supreme Court issued its decision in Elgin, affirming the First Circuit’s holding that an employee challenging his removal from the civil service must pursue his claim before the Merit Systems Protection Board (MSPB), with judicial review in the Federal Circuit, even if the basis for the employee’s claim is that the statute under which he was removed is facially unconstitutional.  According to the Court, this method for seeking relief is the exclusive remedy for an employee under the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq.

Marc Smith
Another Favorable First Level Determination Issued by OPM

As I have written previously, from a historical perspective, the U.S. Office of Personnel Management (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.

Marc Smith
OPM Issues Favorable Ruling During First-Level Review

When an individual petitions the U.S. 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 U.S. 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 U.S. 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 U.S. 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.

Marc Smith
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.

Marc Smith
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 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.  

Marc Smith
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.

Marc Smith
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.

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

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.  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.

Marc Smith
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.  

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

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.

Marc Smith
Failure to Register with Selective Service — OPM Rules in Favor of Two Clients

his week, the Director of OPM issued his determination that several of my clients (one is an employee of the U.S. Department of Defense and the other an applicant with the U.S. Mint), had overcome the presumption that their failure to register with the Selective Service had been knowing and willful.

The fact pattern of one case closely resembled many of the other Selective Service cases I have handled. Our client, who was born in India, first arrived in the United States as a student with a non-immigrant visa. Our client had no knowledge of the Selective Service registration requirements at the time of his arrival, nor did he learn about these requirements during his studies. Our client became a conditional resident prior to age 26 and was thereafter required to register, but he did not because he had not learned about the Selective Service. The twist in this case was that Selective Service allegedly mailed a number of notices to our client regarding his obligation to register.

OPM immediately focused on the fact that Selective Service had allegedly notified our client in writing of his registration obligation. Fortunately, we were able to produce evidence that our client had moved prior to the mailing of these notices. With this and the sworn statements from family members, co-workers and friends and other evidence, we were able to persuade OPM that our client’s failure to register was not knowing or willful.

The other case also involved an interesting twist.  Our client was also born outside the United States and first arrived in the country as a teen.  Our client had failed to register with the Selective Service when he was eligible because he was not aware of the registration requirement.  However, our client voluntarily entered the service in his thirties and is an active member of the National Guard.  Clearly, as a member of the country’s military, it was plain his failure to register was not a knowing and willful act, a fact that OPM clearly recognized.

Marc Smith
OPM Rules In Favor Of Two More Selective Service “Failure to Register” Clients

In recent months, I have taken on a number of cases involving federal employees whose job was in jeopardy due to their failure to register with the Selective Service.  In a previous post, I reported that OPM had ruled in favor of one client, who had lived in Africa for the better part of his life until he returned to the United States when he was 22 years of age.  In that case, after considering our request for reconsideration, OPM determined that we had presented sufficient information to establish by a preponderance of the evidence that the failure to register with the Selective Service was neither knowing nor willful.  As a result, my client was able to keep his job with the IRS.

My most recent cases, while involving similar fact patterns (both clients also worked for the IRS), had an additional twist — my clients had initially entered the country illegally before obtaining their U.S. citizenship.  Like my previous client, these individuals did not become aware of the Selective Service registration requirements until after they reached 26 years of age — by which time it was too late to register (men must register prior to attaining 26 years of age).

With the assistance of the Selective Service (contact me if you are interested in finding out how Selective Service assisted my clients), we were able to convince OPM that the failure to register was neither knowing nor willful and both of my clients were able to continue their federal employment.  A just result in both cases.

Marc Smith
OPM Issues Another Favorable Ruling For Client In Selective Service Case

On August 28, 2010, OPM issued another favorable determination for a client who failed to register with the Selective Service when eligible.  The fact pattern is very similar to the other recent Selective Services cases we have successfully handled before OPM.  The client, who is now employed by the Department of Treasury, lived in the United States as an undocumented alien for the majority of time he was eligible to register with the Selective Service.

Recognizing that our client was not living in the mainstream of society while undocumented, Selective Service issued a status letter with a determination that our client’s failure to register was not knowing and willful.  With this letter from Selective Service and other supporting documentation, OPM also determined that our client’s failure to register was not knowing or willful, and our client was permitted to continue his federal employment.

Marc Smith