Backlog: The Legal System's Newest Term of Art

One of my first purchases as a first year law student was the weighty, iconic “Black’s Law Dictionary.” Armed with this authority, I knew I could sort out almost any legal concept or term—-or at least make a start. It was a gorgeous, pseudo-leather single volume that added prestige to my cinderblock bookshelf, even it failed to deliver immediate brilliance to my fledgling legal career.

While my legal dictionary is no longer handy, I am confident it did not include a term that has become ubiquitous in my professional work: “backlog.”

My law practice includes representing individuals with statutorily-based claims under federal law, both the National Vaccine Injury Compensation Program [NVICP] and the Federal Tort Claims Act [FTCA]. These claims can include professional negligence leading to a patient’s death in a veteran’s health care facility to a myriad of childhood vaccine-related injuries.

While specialized, there is nothing novel or groundbreaking about these claims. In fact, I have been privileged to work on such legal matters for over thirty years. What is “new” about these administrative claims is the appearance of a new procedural term that pervades all of these cases: backlog.

In the past few weeks, I have been informed by federal government attorneys from various corners of the U.S., working in different bureaucracies, that they cannot respond to my clients’ claims for a year or more due to “backlogs” in their respective offices. These backlogs have not excused my clients from complying with strict filing deadlines. These backlogs are not accompanied by interim compensation.

These delays are frustrating and costly to me. However, my frustration and fiscal woes pale in comparison to the impact these delays have on my clients. How can they close the chapter on a spouse’s wrongful death if this legal claim remains outstanding and damages are not paid? How can a vaccine-injured individual close the chapter on the months and years they have lived with chronic pain? They cannot.

The phrase “justice delayed is justice denied” has been attributed to several sources: Gladstone, William Penn, the Magna Carta. Many have quoted it throughout the years: Martin Luther King, Jr. and former Chief Justice Warren Burger, for example. Whatever the provenance of the comment, its meaning rings true today in our administrative law system.

This backlog is not acceptable. May our collective political will demand that “back-log-istics” be shaped to reflect constitutional goals and federal law.