“When he turned 18, Michael B. Elgin Jr. was a homeless father of a toddler, trying to get himself through high school while living with friends, relatives and, sometimes, in his car. Elgin did not know at the time, his lawyer says, but by failing to register for selective military service within 30 days of his 18th birthday, he broke the law.

“Last year, Elgin’s employer of 18 years, the Internal Revenue Service, fired him, citing a ban on federal employment of men who have not registered, despite his exemplary record and appeals from his supervisors and co-workers. Last week, Elgin, 42, of Stoughton, challenged his dismissal in federal court in Boston on the grounds that it discriminated against him because he is a man. Women are not allowed to register.”

I think this guy was treated unfairly. He and his lawyer focus on the fact that there’s a gender discrimination issue–men have to register for the draft and women don’t. I think that’s a fair argument–a burden was put on him as a young man that would not have been put on him were he a woman.

I would add that there are also other fair arguments here.

For one, what about a statute of limitations? The guy failed to register for the draft within a month of his 18th birthday–a punishment 20 years later seems very draconian.

Also, I think he could also make an economic hardship argument.

Thanks to Marc Angelucci of NCFM for the story.

Man who didn’t register for draft sues IRS over firing
By Anna Badkhen
Boston Globe
January 5, 2008

When he turned 18, Michael B. Elgin Jr. was a homeless father of a toddler, trying to get himself through high school while living with friends, relatives and, sometimes, in his car. Elgin did not know at the time, his lawyer says, but by failing to register for selective military service within 30 days of his 18th birthday, he broke the law.

Last year, Elgin’s employer of 18 years, the Internal Revenue Service, fired him, citing a ban on federal employment of men who have not registered, despite his exemplary record and appeals from his supervisors and co-workers. Last week, Elgin, 42, of Stoughton, challenged his dismissal in federal court in Boston on the grounds that it discriminated against him because he is a man. Women are not allowed to register.

Elgin declined to speak for the record.

His lawsuit is the latest challenge to the Selective Service System, the federal registry of all men 18 and older that would serve as the basis of any future military draft.

“It labels women as second-class, and it imposes a burden and a penalty on men . . . that it doesn’t impose on women,” said Elgin’s attorney, Boston civil rights lawyer Harvey A. Schwartz. Men who fail to register for selective service are barred from ever working for federal agencies or receiving federal loans, and, in 35 states, are not allowed to obtain a driver’s license, said Dan Amon, a spokesman for the registry. Violators also can be fined up to $250,000 or imprisoned for up to five years, Amon said, but those provisions have not been enforced since the 1980s.

Schwartz said barring women from registering for selective service is an “anachronism.”

Elgin was hired by the Internal Revenue Service in 1991 as a low-level data transcriber in Andover and worked his way up in the agency, according to the lawsuit he filed Dec. 28, naming as plaintiffs Henry M. Paulson Jr., the secretary of the Treasury, and the Treasury Department, which oversees the IRS. Elgin’s son grew up and served an 18-month tour of duty with the US Army in Iraq, the lawsuit states.

Elgin received repeated praise and numerous promotions at work, until the agency discovered, during a routine background investigation when he was proposed for a promotion in 2002, that he had failed to register for selective service, the lawsuit states.

The Office of Personnel Management, a federal agency that manages civilian federal employees, said Elgin had knowingly failed to register for selective service, and ruled that he could not hold a federal job.

For five years, Elgin’s supporters tried to overturn that decision. Elgin’s supervisors and members of the National
Treasury Employees Union wrote letters to US Senator John F. Kerry, asking him to intervene, said James Chisholm, a Kerry spokesman. Chisholm said Kerry wrote two letters to the IRS on Elgin’s behalf in 2006, asking the agency to issue an eligibility waiver that would allow Elgin to remain employed at the agency.

“He seems like a man who made an honest mistake,” said Chisholm. “He seems like an honest and decent man.”
Senator Edward M. Kennedy also sent letters to the IRS and the Office of Personnel Management on Elgin’s behalf, said his spokeswoman, Melissa Wagoner.

The IRS, in turn, asked the personnel management agency to reconsider. That request was denied last February, Elgin’s lawsuit states. July 27, 2007, Elgin was fired.

“Simply put, if Mr. Elgin were a woman and not a man, he would have retained his federal employment,” his lawsuit states.

Officials at the Treasury Department and the IRS office in Massachusetts declined to comment yesterday. The Office of Personnel Management also did not comment. In addition to reinstating Elgin in his old job, the lawsuit asks that the court rule it unconstitutional to penalize men for failing to register for selective service because that contravenes the constitutional ban on punishment without trial.

The lawsuit also seeks to have the court rule that the Selective Service System discriminates on the basis of gender.

The debate over gender discrimination by the Selective Service System began soon after the registration was reintroduced in 1980, five years after the end of registration for the draft. In one challenge, the US Supreme Court ruled in 1981 that since all men registered with the Selective Service are considered combat replacements, and since Congress forbids women to go into combat, women should not be registered. All subsequent attempts to allow women to register were struck down on the basis of that ruling.

“But that decision was based on the status of women in the military at that time, and it’s a whole new world now,” Schwartz said. About 196,000 women are serving in the military. The Pentagon has maintained that women do not serve in combat positions but has said that servicewomen have killed and died in the wars in Iraq and Afghanistan.

This is the second time Schwartz has filed a lawsuit questioning selective service. In 2003, Schwartz filed a lawsuit demanding that women be allowed to register for selective service on behalf of his son, who was 18 at the time, his daughter, who was 17, and three of their Massachusetts friends.
Schwartz lost that lawsuit, did not appeal it, “and I’ve regretted it ever since.”

This case, he hopes, will be different. “It’s a real life person who was treated poorly. I think it has a lot of appeal,” he said. No hearing date has been set yet.

Anna Badkhen can be reached at abadkhen@globe.com.

Glenn Sacks, www.GlennSacks.com

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