Last month the Department of Labor posted preliminary information about its proposal to hire contract lawyers to draft proposed decisions in federal black lung claims for administrative law judges.
Interested Offerors will be required to provide lawyer writers to draft proposed decisions and orders and/or recommendations in the form of decisions and orders addressing all factual and legal issues involved in Black Lung cases before OALJ Administrative Law Judges including those remanded from the Benefits Review Board or a Federal court. The lawyer writer will be required to modify or amend the draft after the submission of the initial draft to the presiding Judge if requested (occurs on average over 70 % of the time).
OALJ has a contemplated need for lawyer writers, at the following places of performance:
Cincinnati District Office – 5-10 writers
Pittsburgh District Office – 4-8 writers
Cherry Hill District Office – 5-10 writers
National Office – 8-15 writers
. . .
* The Government contemplates awarding multiple- award contracts.
* Lawyer writers will be assigned to a specific judges’ docket.
* Lawyer writers will be paid a fixed price per case only after the decision is issued.
* All Lawyers Writers should have required skills sets and experience in the Black Lung program area.
* Work is envisioned to be performed at the Lawyer writer’s home/office and not at a government site.
* The typical Lawyer writer is expected to carry a workload of 5-8 concurrent cases. Additional workload is available if requested by the writer.
* To ensure there are no conflicts of interests, all lawyer writers must provide a signed, sworn statement that they are not currently practicing or participating in Black Lung case litigation before the U.S. Department of Labor, and Lawyer Writers will continue to not be involved in Black Lung litigation before OALJ, while serving as a writer. The writer will also agree that the writer will not work on a Black Lung case if the writer participated or was involved with any prior litigation with that case or the parties in the case.
The bolded provisions will be a deal breaker for nearly all interested attorneys. The Department of Labor is attempting to thread a thin eye. They want experienced black lung attorneys who are not currently practicing black lung law and will swear not to practice black lung law while serving as a writer. I can only think of three categories of attorneys that would meet these criteria:
- Former clerks for judges who decided black lung claims
- Attorneys who used to practice black lung law but are not currently (and do not plan on doing so in the immediate future)
- Former participants in Washington & Lee Law School’s black lung clinic who are not practicing black lung law
Hopefully, enough attorneys will fall into one of these categories so that the Department of Labor will be able to fill the 22 to 43 spots that are contemplated and meet its goal of reducing the backlog before OALJ. (The most recent data that I’m aware of says that it generally takes 520 days from the time a party seeks a formal hearing on a black lung claim before an administrative law judge issues a decision.)
I am not familiar with the process of federal contracting, but it appears that at this time the Department of Labor is not actually soliciting offers, but rather is asking attorneys who would participate if they have any feedback on the current draft of the solicitation. The current deadline to respond is January 29, 2015 at 2:00 p.m. Eastern Time.
This proposal to hire contract lawyers was previously mentioned by Deputy Secretary of Labor Chris Lu in his testimony last summer before the Senate on problems with the federal black lung system. (See previous post here) The written statement said that DOL would be
Exploring the use of contract attorneys, who are usually former law clerks, to draft black lung decisions on a fixed cost per case. In the past, this has proved a cost-effective method of reducing decision backlogs.
Below is the full posting of the revised draft from December 19, 2014.