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.

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