Legal Job Search Strategies: “Backlogs”

Never buy into the false mantra that the only ways to find a legal job are through (1) a posted job ad, or (2) networking. If you limit yourself to these two conventional job-search techniques, you will miss out on some golden opportunities. One alternative to the traditional approach is to identify backlogs, places and processes where the decision-making system is under stress due to a tsunami of demand. Call it the “Backlog Gap.”

What Am I Talking About?

“Backlogs” in a legal employment context means that the supply of adjudicators, legal support staff, outside representatives of petitioners, filers, claimants and other practitioners who can advise and assist employers and clients with coping with administrative processes is unable to cope with the demand. Anytime you identify such a backlog, think “job opportunity.”

Identifying a Backlog

Backlogs are often easy to identify through published data on government agency websites (typically in annual reports), legislative testimony (especially testimony from agency officials who appear at least annually before congressional Budget and Appropriations committees and subcommittees), a transcript of which is available from committee websites, and news media stories. Below, you will read about several specific examples derived from each of these three approaches.

Where Backlogs Are Most Likely to Occur

The most prevalent backlogs can be found in government agencies that: (1) hear or otherwise decide cases concerning benefit claims, (2) receive petitions for some kind of redress or remedy, (3) grant a license or its equivalent; or (4) are required by a new law to promulgate a large number of implementing regulations.

Benefit Claims

More than 50 federal agencies hold hearings where Administrative Law Judges (ALJs), Administrative Judges, Hearing Officers or Panels hear and decide on claims against the government or for benefits that have been denied at a lower administrative level. Examples include: the Social Security Administration (SSA) Office of Disability Adjudication and Review (ODAR), which holds hearings at 160 offices around the country as well as by videoconference; the Board of Veterans Appeals (BVA), which hears benefits cases in Washington, DC and throughout the U.S. at local Department of Veterans’ Affairs offices, as well as electronically; the Office of Medicare Hearings and Appeals (OMHA), which hears cases in Arlington (VA), Cleveland, Miami and Irvine, as well as via videoconference; and the Department of Labor’s four units that hear cases involving employee compensation, and black and brown lung benefits, among other appeals.

Petitions for Redress/Remedy

Many federal agencies decide cases where a petitioner requests redress or a remedy for an alleged wrong. They include, for example, the Equal Employment Opportunity Commission (EEOC); Army Board for Correction of Military Records; Air Force Discharge Review Board; Naval Clemency and Parole Board; U.S. International Trade Commission (USITC); and the Internal Revenue Service (IRS).

Granting of Applications

The U.S. government takes, reviews, and grants applications for a variety of activities, including drug and medical device approvals by the Food and Drug Administration (FDA); patents, trademarks and service marks by the U.S. Patent and Trademark Office (USPTO); and copyrights by the Library of Congress’s U.S. Copyright Office.

New Laws

Whenever a major piece of legislation that contains regulatory compliance and enforcement provisions is enacted, there is invariably a requirement that the relevant federal agencies develop and issue a host of new regulations. Examples include: the Higher Education Opportunity Act of 2008, which imposed more than 300 new regulatory reporting requirements on colleges and universities; Patient Protection and Affordable Care Act; Dodd-Frank Wall Street Reform and Consumer Protection Act, a 2,700-page monster that contained a mandate for almost 400 new regulations; and the Food Safety and Modernization Act of 2011.

Current Backlogs Smacking of Opportunity

More than 543,000 patent applications await action. Despite USPTO hiring thousands of new Patent Examiners in recent years, and opening four new Patent Offices (Detroit, Silicon Valley, Denver, and Austin), the first-ever offices outside of its headquarters office in Alexandria, VA, patent filings are setting new records every year. More than 750,000 trademark applications currently await review.

More than 1.1 million Social Security Disability Income hearings are pending and wait-time for a hearing is now over 525 days. SSA hired 400 new ALJs and an equal number of legal support staff in the last few years, and plans to hire an additional 250 ALJs in the next two years. In addition, the agency has moved to a data-driven system designed to expedite the benefit claims and hearing processes. Nevertheless, the backlog keeps rising.

667,000+ Medicare Appeals are clogging up OMHA. The backlog is climbing rapidly due to the aging population, catching both Medicare recipients and healthcare providers in this bind. The 5-step review process has virtually ground to a halt as OMHA ALJs watched their workload increase fivefold in just one year. OMHA is now receiving more appeals every month than it can handle in a year. Its parent department (Health & Human Services) predicts that the backlog will grow to more than 1.1 million appeals by 2021.

Veterans Appeals are backlogged by more than 400,000 cases, but are anticipated to go over 1 million without a substantial staff increase (36 percent). More than 50% percent of Iraq and Afghanistan vets are filing disability claims, many for Post-Traumatic Stress Disorder. BVA is overwhelmed with work. The wait for an appeal to be heard is now up to 1,300 days. More than half of all veterans’ disability appeals are sent back for another review — sometimes more than once — and must be addressed before new cases are opened.

EEOC Hearings involving only federal employee grievances are now up to a 73,000 backlog. There is a nine month wait for a hearing. A comparable backlog afflicts the EEOC private sector docket.

Immigration Courts are bogged down by a 586,000 hearings backlog. The 250+ Immigration Court Judges are strained to the breaking point.

Workers’ Compensation hearings at the state level are suffering from some of the same backlogs as the federal government, the primary reason being the aging population. Age fifty appears to be an inflection point above which work-related injuries and disabilities become increasingly more likely to occur.

Translated…

Backlogs mean job opportunities, both with the affected administrative agencies that must hear and decide cases, but more so with the firms and practitioners that appear before these agencies on behalf of claimants and petitioners. So, if you want to find a way to job-hunt that is different from what your competitors are doing, consider the backlog approach.