Administrative Litigation Keeps on Truckin’

A Great Training Ground

Administrative litigation is to arguing in a trial court what pre-school is to K-12 education. It allows you to learn how to be a confident and effective advocate in a nurturing environment before throwing you into a courtroom. It is more predictable, orderly and forgiving than trial litigation while lowering the stress level to manageable proportions. It provides would-be litigators an opportunity to learn their craft and polish their skills in a more relaxed environment, often in the absence of opposing counsel.

In The Administrative Law Revolution: Learning to Litigate in a Forgiving Environment, Volume 7 in our 21st Century Legal Career Series (available from Amazon.com https://amazon.com/Administrative-Law-Revolution-Forgiving-Environment/dp/1946228133/ref=sr_1_26?keywords=richard+l+hermann&qid=1558019931&s=gateway&sr=8-26 or the National Association for Law Placement https://nalp.org/careers), we cited ten reasons why administrative litigation was one of the hottest practice areas and was ideal for a newly-minted lawyer. Among the most compelling reasons were the surge in case filings leading to a huge hearings backlog that pushed up demand for lawyers to handle these matters, and the thousands of federal, state and local venues in which cases can be adjudicated (Social Security Disability Income cases, for example, are decided on site or via Skype or a comparable technology at 168 separate locations.).

Filings and Backlogs Keep Mounting

This has not changed. In fact, backlogs have continued to mount and governments at all levels are adding more venues to cope with the demand.

Moreover, an aging civilian population (10,000 Americans turn 65 every day, a phenomenon that will continue through 2029) and aging veterans generate huge numbers of benefits appeals that are overwhelming the Social Security system, Medicare and the Veterans appeals process. These three administrative litigation regimes are confronted by a veritable age tsunami. Add the rapidly escalating backlog of immigration cases to this mix and you have a crisis with an aggregate backlog of more than 2 million hearings.

A Gentle Learning Curve

The learning curve for many administrative cases is not steep. The track record of entry-level attorneys jumping right into Social Security, Medicare, Veterans and Immigration litigation is very positive.  Since these are the forums where the largest numbers of federal administrative litigation takes place, they are the best places to get your feet wet as a litigator. Once you have become comfortable here, you can move on to more complex (and thus more potentially remunerative) venues such as Equal Employment Opportunity and environmental litigation as well as the 30 other U.S. government agencies that hear administrative cases.

Admin Forums Are Everywhere

The three major kinds of administrative forums are distinguishable by the types of cases they hear and decide: (1) benefit claims (e.g., disability), (2) petitions for redress or remedy (e.g., discrimination), and (3) requests for a license or equivalent (e.g., drug approval).

 Approximately 130 U.S. government agencies are involved in deciding administrative cases through their Administrative Law Judges, Administrative Judges, Hearing Officers and Panels. They hold hearings at hundreds of venues throughout the country as well as via electronic media. In addition to initial hearings, there is a vast administrative appeals regime.

Getting Qualified

You do not even have to be a member of the bar to qualify to represent claimants and other petitioners before many of the federal and state agencies that decide administrative cases. This applies to advocates who practice before some of the highest-volume forums, including the Social Security Administration https://ssa.gov, Board of Veterans Appeals, https://bva.va.gov/  Immigration Courts, https://www.justice.gov/eoir/ Office of Medicare Hearings and Appeals, https://hhs.gov/about/agencies/omha/index.html Equal Employment Opportunity Commission, https://eeoc.gov/ Department of Labor https://dol.gov/ and workers’ compensation boards https://dol.gov/owcp/dfec/regs/compliance/wc.htm in some of the largest states.

Synergies and Fungibility

One of the most enticing aspects of this practice area is the synergies and fungibility it offers practitioners. If you get your feet wet in one of the many federal agencies that hold hearings under the Administrative Procedures Act https://archives.gov/federal-register/laws/administrative-procedure, you render yourself able to represent clients in all of the other such agencies from a procedural standpoint. If you learn what you need to know about disability law in order to advocate before one of the agencies that considers disability claims, you become competent to offer similar services to clients whose claims are decided by other agencies.

Administrative litigation also takes some of the burden off trial courts, which is one reason such forums continue to expand in number.