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.

Presenting Your Case to OPM Following a Failure to Register with the Selective Service

As I wrote in a previous article on this blog, an individual’s failure to register with the Selective Service before attaining 26 years of age operates as a bar to federal employment.  Since my first blog article, I have been retained in a number of cases involving current employees who are either facing removal or individuals who have been rejected at the application stage for failing to register with the Selective Service.  The fact patterns of these cases are strikingly similar and all involve individuals who came to the United States in their 20’s and had no knowledge of Selective Service registration requirements.

Fortunately, failing to register with the Selective Service does not operate as a bar to federal employment if the employee or applicant is able to demonstrate by a preponderance of the evidence that his failure to register (only males are required to register) was not knowing or willful.  There are two opportunities to make this showing — the initial determination by OPM and a “request for reconsideration” if OPM makes an adverse determination at the initial stage.  Your agency must request the initial determination, whether you are an applicant or a current employee. In many cases, the agency will not request an initial determination if you are rejected at the application stage, so if you are rejected at the application stage, you should ask the agency to request an initial determination.  Otherwise, you will not have an opportunity to seek a determination from OPM unless you subsequently apply for another federal position, and are rejected, for failing to register.

OPM issues adverse rulings in many initial determinations because employees (or applicants) do not submit proper evidence that their failure to register was neither knowing or willful.  In this regard, OPM will likely reject any initial request for determination that is not supported by either an affidavit or declaration made under the penalty of perjury.  Employees or applicants should take full advantage of the two opportunities they have to convince OPM that their failure to register was neither knowing or willful and submit their evidence in the proper form from anyone who can attest to the fact that the failure to register was neither knowing or willful.  If you are like many of my clients, you should consider submitting affidavits from your family members who can attest to the fact that Selective Service requirements were not known or discussed prior to your relocation to the United States or included as part of your educational curriculum.  You should also consider obtaining affidavits from your friends, associates and co-workers who can provide supporting information.  If you have any documents, such as job applications that do not inquire about your selective service status, you should submit these as well.

Providing this information at the initial determination stage will position you for the best possible result and, in the event you are not successful, you will be fully prepared to file your request for reconsideration to the Director of OPM within the required 30 day window.

Marc Smith
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.

Marc Smith