Appealing a Final Administrative Decision: Is It Worth It?

Lately, Nechleba Law Firm, P.C.'s seen a significant uptick in cases and questions about administrative appeals. These are individuals who challenged a revocation of their driver's license with the DMV, or they are businesses who contested the increase in their tax liability based upon unemployment compensation insurance claims. They are people who stepped up to plead their case before an administrative tribunal or hearing officer, and they came up short.

My name gets thrown around quite a bit among the Colorado defense bar after this happens because I am literally one of two attorneys working in private practice that used to be a judge of these administrative matters. Moreover, I've taught dozens of classes over the course of multiple years to the Colorado defense bar on ways to improve their knowledge and skill doing hearings and trials on the administrative level. Further still, I appear to be the only private attorney to have taught the judges of the Colorado Department of Revenue Hearings Division a class on best practices and case analysis.

My background is mostly in civil administrative litigation. At the start of my legal career, I was part of the office of general counsel for a state labor department, navigating bureaucratic processes and streamlining them, responding to internal personnel issues, managing the administrative appellate docket, appearing for depositions and bankruptcy hearings, and overall defending my agency's decisions to the district courts when legal issues left the gravitational orbit of our office. After leaving that position, I went to work for Colorado's Department of Revenue in their Hearings Division, where I presided over thousands of administrative cases as the sole judge of whatever issue came before me. I volunteered a lot of my free time offering Pro Bono legal services to small local businesses to keep a well-rounded skillset, but generally, everything I knew about the law revolved around how government agencies internally considered external problems and complaints.

Over the course of nearly a decade, I've realized there's a great deal of power in that kind of knowledge, because to understand the reasoning, rationale, and process behind any given action or decision comes with it the ability to shift the direction of that action or decision. When people call me, they're usually quite pessimistic at their chances on appeal. There's good reason to feel that way. First, the fact is that when you have a hearing--when have your day in court but lose- you're not going to feel great about the process as a whole. Second, most trial attorneys correctly advise their clients that Colorado's administrative appeals process is extremely narrow in scope; the decision from the administrative court can only be overturned and reversed if the decision was--and I'm abandoning all legalese here--totally out of left field with no reasonable explanation whatsoever.

Returning to the comfort of legalese, we attorneys say that an appeal only has merit if the underlying decision was "arbitrary, capricious, or outside the scope of the deciding judge's authority." To break that concept down a little further, it's best to understand that there are two general ways in which an appellate court reviews administrative decisions: by considering issues of law, and/or considering issues of fact.

Issues of law are considered de novo by the reviewing appellate court. That just means that the court mind what the administrative judge or hearing officer concluded at the trial or hearing below; they look at it with brand new eyes. Issues of law include interpretations of particular statutes, regulations, or case law. It can also include the decision to admit or deny evidence at a hearing.

Issues of fact are considered with deference to the lower court's decision--that is, if there is anything in the evidentiary record at all that supports the administrative judge's decision regarding what factually happened in the case, then the reviewing appellate court will not disturb that decision. These sorts of things include credibility of evidence--for example, one person's recollection of events versus another's. Ideally, most attorneys working in appeals like to focus on issues of law because the original decision on the matter can be ignored completely; it's like getting a do-over. When issues of fact are involved, however, things become a lot more difficult because the decision to believe one person over another is something that is always the responsibility of the originating court--i.e. - the administrative hearing officer or judge. As such, appellate review judges are less inclined to reverse the outcome of a case based upon an issue of fact.

While the most promising appeals are based upon issues of law, that doesn't mean that you don't have a meritorious case just because you're stuck with an issue of fact. As a former judge to administrative hearings and an authority on administrative appeals, I can tell you that procedural mistakes happen all the time. Mostly, I find that factual inferences made at hearings are frequently done with a bit of carelessness, without sufficient regard for several procedural prerequisites to permit those inferences.

This kind of error strikes at a proceeding's fundamental fairness; however, it is not something done out of maliciousness, but rather part of a design flaw in administrative hearings. Ordinarily, the judicial branch of government is used to interpret law and review executive actions. Administrative courts, however, sit within the executive branch of government, and as a result, carry not only the responsibility of enforcement of their actions but review of them as well.

The purpose of having these executive branch administrative courts is to not only alleviate docket traffic and congestion in the judicial branch, but also to ensure there is a quick resolution to the issues at hand due to the perceived immediate danger to the public. The problem, however, is that the executive branch's specialty is the speed of execution of government actions, not the thorough review of those actions. Comparatively, the judiciary's specialty is the thorough review of the execution of government actions, but at the cost of speed.

At the end of the day, the question is whether it's worth it to appeal a final administrative decision. While every case is different and the likelihood of success changes as a result, I like to say that you miss 100% of the shots that you don't take--or at least, that's what Wayne Gretzky liked to say. Because I'm less of a hockey guy and more of a boxing fan, I'll say this: out of the thousands of the punches thrown in a given boxing match, only about 20-40% are going to land on your opponent. However, you cannot hope to win the fight at all if you're not willing to let your hands go, and any one of those punches could be a knockout.

If you've lost a hearing over your driving privileges, your unemployment insurance, or any other administrative proceeding, you can rest assured that Nechleba Law Firm, P.C. has over half a decade's experience in taking your fight to the next level. Please don't hesitate to contact us for a consultation regarding you case because all appeals are extremely time-sensitive.