Dwindling number of judges burdens workers

Introduction

Russell Pulver insists he wasn’t ready to retire.

Pulver, until recently a San Francisco-based administrative law judge for the U.S. Department of Labor, says he relished his role as an arbiter of wage disputes, benefits claims and other matters that go to the core of working people’s lives.

“I had no intention of retiring for at least three or four more years,” Pulver, 63, said in a telephone interview. Then, last March, the Labor Department’s already-weakened Office of Administrative Law Judges (OALJ) took a 5-percent hit from congressionally mandated budget cuts known as sequestration. Judges were told to expect furloughs.

For Pulver, that was it. He decided to leave when the fiscal year ended Sept. 30.

“Each year I seemed to hear more cases and be given less help,” said Pulver, who now runs a mediation service near San Diego. “I said, ‘I’m getting no love. I’m not staying around for this.’ ”

His departure pared the number of judges in the OALJ’s San Francisco office to four. In 1999 there were nine, not to mention two in a satellite office in Long Beach, Calif., which then closed in 2000.

Nationwide, the number of judges continues to plummet while filings escalate. New and pending immigration cases, involving employers seeking to hire foreign workers on a permanent basis, are more than seven and 23 times, respectively, what they were in 2009.

Claims brought under the Longshore and Harbor Workers’ Compensation Act and the Black Lung Benefits Act are up more modestly. But claims filed under the Defense Base Act, a part of the Longshore program applying to military contract workers, are mounting steadily due to the wars in Iraq and Afghanistan.

In a memorandum to Deputy Secretary of Labor Seth Harris last April, Chief Judge Stephen Purcell wrote that staff cuts — not only judges but also law clerks who conduct legal research and summarize evidence — had had a “devastating” effect on the OALJ’s ability to hear cases and deliver timely decisions.

The office “has been, and remains, inadequately staffed to handle our mission-critical responsibilities,” Purcell wrote. “We are fast reaching a point where the productivity of this Office will sustain a significant downturn from which we will likely not recover for years to come.”

Harris declined interview requests from the Center for Public Integrity. In a written statement, the Labor Department said it is “very concerned with the budget situation for all its programs including the ALJs. We continue to work within the Administration to provide sufficient resources for this important activity; however, the situation in Congress has made it difficult to obtain any new resources.”

The department said it has asked for more than $1 million in additional funding for the judges in the president’s 2014 budget. But there’s no guarantee the money will come.

Paul Mapes, a retired administrative law judge in Walnut Creek, Calif., accuses the department of “bad management. … It’s kind of a bipartisan neglect. The adjudication function is one of those routine things that seldom get good publicity. It’s just ignored.”

The results: long, possibly life-threatening, waits for sick or injured claimants and subpar settlements. “The longer the average time to get a decision, the more pressure there is on the claimant to settle,” Mapes said (settlements aren’t allowed in black lung cases).

Claimants with inexperienced counsel are taking “a dime on the dollar,” said Steven Birnbaum, a lawyer in San Rafael, Calif., who specializes in Longshore cases. “The alternative is to wait and wither on the vine for a hearing and a decision.”

Claimants aren’t the only ones put off by the backlog.

Robert Babcock, a lawyer near Portland, Ore., who represents employers and insurers, said, “I haven’t heard anyone from my side of the table express delight with the delays that have been developing over the last few years.”

The maximum benefit for permanent total or temporary total disability in a Longshore case is $1,347 per week, Babcock said. An employer that contests such a claim and loses before an administrative law judge may wait three years for an appeal to run its course, especially on the West Coast. In the meantime, it has to pay the ordered benefit. The three-year total: $210,000.

“Even if the employer succeeds on appeal, the money’s gone,” Babcock said. “You don’t get it back.”

Mapes, who stepped down in 2007 after hearing cases out of San Francisco for 16 years, has become an advocate for his former colleagues, representing them in an appeal before the Merit Systems Protection Board challenging the legality of 5½-day furloughs imposed on the judges this year as a result of sequestration.

The Labor Department, Mapes argues, could have found better targets for budget-cutting than the beleaguered OALJ. One candidate, he said, is the International Labor Affairs Bureau, whose main purpose is to award grants and contracts designed to improve labor relations abroad. While some of the awards go toward regulation of child labor — “certainly a good cause” — others pay for research papers on “vague topics that could stand to wait” until the federal budget situation improves, Mapes said.

In his April memo to deputy secretary Harris, chief judge Purcell noted that the Labor Department planned to boost spending on enforcement of whistleblower and wage-and-hour statutes. “While increased enforcement … is certainly a laudable goal, any gains to workers that result from such enforcement are greatly diminished if their cases languish at OALJ,” Purcell wrote.

At one time, the department’s administrative law judges heard mostly Longshore and black lung cases. “Over the last 20 years that’s changed tremendously because Congress has kept adding whistleblower statutes,” Mapes said. Today there are 18 of them.

Such cases command large chunks of judges’ time. The decisions “tend to be quite long and take a long time to write,” Mapes said. “I’ve spent over a month writing a single decision in a whistleblower case.”

Ailing workers suffer most from OALJ delays.

“My father was a coal miner, and I grew up in a coal-mining community,” said John Vittone, a Labor Department judge in Washington, D.C., from 1987 to 2010. “The black lung program made a huge difference in lifestyle for those disabled miners. It’s the same thing with Longshore. Guys get injured building and repairing ships, and [the federal workers’ compensation system] is all they have other than, probably, Social Security.”

Birnbaum, the lawyer, said that when the Longshore program is “administered correctly there is no better workers’ comp program in the country.”

Now, he said, “It’s an abomination. The sad part about it is the Department of Labor probably could solve this problem pretty easily by addressing its programs with a little bit different priority.”