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.