OPM Allows Client To Keep Position At IRS Despite Failing To Register With The Selective Service
The requirement to register with the Selective Service remains firmly in place despite the fact that there has been no military draft for many years. In a nutshell, all males between the ages of 18 and 26 are required by Federal law to register with the Selective Service. Failing to register has various consequences, including ineligibility for federal employment if the failure to register is deemed “knowing or willful.” See 5 U.S.C. § 3328. The Office of Personnel Management (“OPM”), has the final say in these matters, and typically finds that nearly all failures to register are “knowing or willful” and therefore disqualify the offender from being hired or continuing their federal employment no matter how innocent the violation appears. This stance by the OPM has spawned at least one class action involving employees who were disqualified for federal employment or lost their jobs as a result of their failure to register with the Selective Service. One court in Massachusetts has ruled that 5 U.S.C. § 3328 is unconstitutional.
I recently represented an employee of the Internal Revenue Service (“IRS”) in a very interesting case involving this issue. Our client had been working with the IRS since 2005 and was considered an exemplary employee but had recently received notice from OPM that he was no longer eligible to continue his federal employment due to his failure to register with the Selective Service. Before retaining counsel, the client had already unsuccessfully appealed his case to OPM.
Our client’s circumstances were compelling, but very similar to the fact patterns of other cases where the OPM had found the failure to register “willful or knowing.” Very briefly, the client was born in the States but moved with his family to Africa when he was 3 years of age. When he was 22, our client returned to the United States, but did not register with the Selective Service because he was not aware there was any requirement to do so. In fact, our client did not learn of this requirement until he was 27 — by which time it was too late to register. It is not entirely clear how our client was able to obtain federal employment and retain his position for years before the government began taking official steps to terminate his federal employment.
I contacted OPM and advised them of our intent to appeal their decision. I was almost immediately contacted by an OPM attorney who was extremely professional and secured an agreement from her superiors at OPM to allow my client to retain his position with the IRS pending adjudication of our appeal. During the course of the appeal, we submitted detailed information to OPM, including affidavits, demonstrating that our client did not become aware of the requirement to register with the Selective Service until he was 27 years of age and too old to register.
Several days ago, I received a letter from the Director of OPM advising me that we had presented sufficient evidence to convince him that our client’s failure to register was not “willful or knowing” and that he was therefore entitled to keep his job with the IRS. Needless to say, everyone involved with this case was extremely pleased with the outcome.
Does this case signal a shift in OPM’s philosophy? Only time will tell.