Thread: Ban on jobs for those who don't register for draft invalidated

For those of you who know me or have read my posts in the past, this issue is near and dear to my heart, and this decision may actually pave the way for me to finally get hired in FLE.

Before anyone posts comments about draft dodging, or failing to do your duty, I would encourage you to read my past posts, and the applicable law, before jumping to any conclusions.

If you want a copy of the decision, PM me and I will gladly send it (My personal situation is referenced by the judge as an example of how harsh OPM behaved - See pages 22/23).

Ban on jobs for those who don't register for draft invalidated

http://www.boston.com/news/local/mas...ft_overturned/

Judge backs 4 who were fired
By Jonathan Saltzman
Globe Staff / January 28, 2009

A federal judge in Boston has declared unconstitutional a 1985 law that bars people from most federal employment if they knowingly fail to register for the draft.

US District Court Judge Douglas P. Woodlock, siding with four men fired by the federal government for failing to register years earlier, said the law violates a constitutional provision that bars the legislative branch from punishing people without a trial.

"I conclude that no circumstances exist that would permit Congress, in contravention of the Constitution's Bill of Attainder Clause, to prohibit nonregistered males age 26 and older from federal agency employment for their lifetimes without judicial decision making," Woodlock said in a 32-page decision.

The four men - who lived in Massachusetts, California, Michigan, and Washington, D.C., when they were fired - want to be rehired and compensated for lost wages. They had worked for agencies, ranging from the IRS to the Federal Deposit Insurance Corporation.

"There's already a criminal statute that says if you don't register with the Selective Service if you're required to," said Harvey A. Schwartz of Boston, the civil rights lawyer for the men. "You can be indicted, you get a trial, and there's a punishment for committing a crime. What you shouldn't do is have the legislative branch say, 'You get no trial, you have no opportunity to put up a defense, and here's how you're punished.' "

Schwartz said the statute of limitations for charging someone with a felony for failing to register for the draft had lapsed for all four men.

The Massachusetts plaintiff, Michael B. Elgin, whose last known address was in Stoughton, fathered a child at 14, was kicked out of his family's residence, and was homeless when he turned 18, according to the complaint. He was unaware of the requirement to register within 30 days of his birthday.

Elgin, 43, fired from the IRS in 2007 over the objections of supervisors and Senators Edward M. Kennedy and John F. Kerry, could not be reached for comment.

Christina DiIorio-Sterling - a spokeswoman for US Attorney Michael J. Sullivan, whose office is defending the government in the suit - said the Department of Justice is reviewing the ruling and had no further comment.

Woodlock, an appointee of the Reagan administration, plans to hold a hearing Feb. 6 to discuss what happens with the lawsuit. Schwartz said he will ask Woodlock to certify the complaint as a class-action claim on behalf of thousands of other federal employees fired under the same statute.

"The usual course, when you're challenging the constitutionality of a federal law, is you lose in the trial court, you might win or lose in the appeals court, and the final decision gets made by the Supreme Court," Schwartz said. "It's a big deal for a [trial] judge to tell Congress that you violated the Constitution."

John Reinstein, legal director of the ACLU of Massachusetts, which did not take a position in the suit, said Woodlock's ruling "illuminates a provision of the Constitution which I think people don't pay much attention to, but which is nevertheless an important check on what the government can do."

Article I of the Constitution prohibits Congress from passing a law that decides someone's guilt and punishes without a trial by the courts. The provision, crafted by the framers of the Constitution even before the Bill of Rights, represented a repudiation of the practices of the English Parliament, which periodically punished individuals or groups without a trial.

Woodlock's ruling Monday focused on two acts of the US government more than 20 years ago.

In 1980, in response to the Soviet invasion of Afghanistan, President Carter issued a proclamation requiring that men born on Feb. 1, 1960, and afterward register when they turned 18.

Five years later, Congress passed a statute that said anyone who "knowingly and willfully" failed to register could not work for an executive agency.

Senator Strom Thurmond of South Carolina, who championed the bill in the Senate, said people "who irresponsibly violate the Selective Service statutes should not be allowed the benefit of a civil service job."

Three of the four who challenged the law were unaware they had to register when they turned 18 in the 1980s and '90s.

Those men were Elgin, who worked for the IRS in Andover from 1991 to 2007; Henry Tucker of Washington, who worked for the FDIC from around 1990 to 2007; and Christon Colby of Michigan, who worked for the IRS from 2002 until 2007.

The fourth plaintiff, Aaron Lawson, 33, who fought forest fires from 2003 to 2008 for the Bureau of Land Management in California, said that he did register at 18 but that there is no record of it.

Saltzman can be reached at jsaltzman@globe.com.

© Copyright 2009 Globe Newspaper Company.

I don't think that makes any sense. If an agency says that registration with the Selective Service is a requriement for a job, then so be it. What if I said that I used drugs, but was never tried for it? Should the agency not be able to bar me from employment because I wasn't convicted?

Originally Posted by Charlydevo

I don't think that makes any sense. If an agency says that registration with the Selective Service is a requriement for a job, then so be it. What if I said that I used drugs, but was never tried for it? Should the agency not be able to bar me from employment because I wasn't convicted?

Someone didn't follow my directions . Registering was not a "requirement" per se, failing to register knowingly and willfully was a disqualifier. Its the knowing and willfully part that OPM was basically ignoring.

The law said if you proved you didn't fail to register on purpose (and the proof standard was preponderance of the evidence) then you WERE eligible for federal employment. But OPM ignored all of that too.

All those of us affected wanted was the ability to prove by trial or other judicial review, that we didn't fail to register knowingly and willfully.

Forgive my ignorance on this matter, but once you found out that you had to register for selective service, did you register, or is this something you can only do when you are younger??? I don't know so can I be enlightened.

I remember your story.

I am glad to hear things appear to be looking up for you! Common sense prevailed.

Forgive my ignorance on this matter, but once you found out that you had to register for selective service, did you register, or is this something you can only do when you are younger???

I believe you have to register within 30 days of your 18th birthday. I don't think you can go back and do it after the fact. Been a long time since I was 18, so I'm not 100% on that.

Remembering your past trials, this is certainly good news... congrats! Out of curiosity, do you how will this affect any of your former applications?

Originally Posted by Rasputin

Forgive my ignorance on this matter, but once you found out that you had to register for selective service, did you register, or is this something you can only do when you are younger??? I don't know so can I be enlightened.

You are supposed to register within 30 days of turning 18 as Krellum noted, but I believe you can also register up to the age of 25 if you find out later. I was 26 when I moved back to the US and I was 29 when I became aware of the requirement via my FBI application, so there was nothing I could do (I did contact the Selective Service people anyway to see what my options were - and that's when they advised me I was eligible for a waiver if I could prove that my failure to register was not knowing or willful).

Right now I am in wait and see mode as to how this will affect my previous offers. My ICE and BP pre-employment stuff has expired, so it would be back to the drawing board there.

I believe my DSS stuff is still good as my background was adjudicated in March 2008. May have to redo the medical, but hopefully not the BEX. Kind of cautiously optimistic at this point. Plus I turn 36 next month, so not a lot of time to waste.

How did you not know to register?

Originally Posted by BPA2FAM2ICESA

How did you not know to register?

Because when you don't live in the US, nobody tells you about it, whereas if you live in the US, everybody tells you about it (DMV's, high schools, financial aid applications, post offices..).


Selective Service Waiver

Filing suit - Selective Service registration

Hanging up my Federal Job Hunting Spurs

cpwclarke,

My file is for review at OPM for failing to register with the selective service. I did not know in December 1986 (as a US Conditional Resident at the age of 25 years and 6 months) that I needed to register. In 1986 the law was new and I moved several times and my lawyer did not advise me about the law. I always thought that you had to be a US Citizen to register for selective service. I became a US Citizen in 1999 at the age of 38 years and I was informed it is too late to register.

Any idea what OPM may decide and if there are any appeals?

***post removed***