Should Administrative Agencies Adopt Class Action Procedures?

The U.S. administrative state is suffering a backlog crisis. Veterans, coal miners, and injured employees often wait years for the government to review their claims. Some regulation researchers have called for increased funding and more administrative law judges to clear the backlog. Yet until agencies see a budgetary windfall, they might be able to borrow from the court system an increasingly used litigation tool: the class action.

A committee of the Administrative Conference of the United States (ACUS), a federal agency dedicated to improving governmental processes, thinks that class actions and other aggregation devices constitute a creative solution to the backlog problem that is worth considering.

Last summer, ACUS commissioned a project examining whether and how class actions and other aggregation techniques might clear administrative backlogs while still ensuring just outcomes. The project’s lead consultants, Michael Sant’Ambrogio, a professor at Michigan State University College of Law, and Adam Zimmerman, a professor at Loyola Law School, recently released a final report identifying when aggregation might be appropriate and what challenges it presents.

The most well-known aggregation tool is the class action. A class action is a lawsuit where one or more individuals litigate as representatives of a larger class of people. If the class wins, those who did not directly participate in the lawsuit still can be bound to the decision. Courts can also “informally aggregate” related cases by consolidating them under one judge’s jurisdiction. All forms of aggregation are supposed to save resources by streamlining the fact-gathering process and setting the parameters of liability.

Civil litigation in the courts follows fairly formal procedures. For example, class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. All classes must meet a series of rigorous requirements before the case can move forward.

Other forms of aggregation are also subject to federal statute and multidistrict judicial panels. While lawyers may seek out jurisdictions with the most favorable local rules, federal rules still dictate when consolidation may be appropriate.

In contrast with the federal courts, administrative agencies federal law have only minimal procedural requirements for aggregation. Individual agencies “enjoy broad discretion to craft procedures they deem ‘necessary and appropriate’ to adjudicate the cases and claims that come before them,” according to Sant’Ambrogio and Zimmerman. Even more, administrative agencies are not subject to the Rules Enabling Act, which prohibits traditional federal courts from prescribing procedural rules that “abridge, enlarge or modify any substantive right.” Absent a statutory prohibition or other signal from Congress, each administrative agency may use the “best procedural format” for its decision.

Some agencies are already experimenting with aggregate adjudication. The Equal Employment Opportunity Commission (EEOC), the agency charged with the responsibility of enforcing federal employment anti-discrimination laws, has established class actions procedures modeled after Rule 23 of the Federal Rules of Civil Procedure. EEOC class actions empower administrative law judges to “apply decisions to groups of claimants working for the same employer” and find patterns of discrimination that might “otherwise might escape detection in an individual proceeding.”

At the National Vaccine Injury Compensation Program (NVICP), special judges hold “omnibus proceedings” in which a single set of adjudicators hear all claims arising from “the same general scientific question of causation.” Consolidating cases under a single adjudicator in this way allows for the question of whether a vaccine causes a particular malady to be answered quickly and definitively, and then applied uniformly across cases.

Still, neither of these programs has escaped concern. Some EEOC judges have apparently expressed worry about the due process rights of absent class members and the adequacy of counsel. At the NVICP, some of the individuals who have sought claims have alleged that certain judges are biased, and that difficult scientific questions should not be solved in an “obscure vaccine court.”

To address questions of due process and legitimacy, Sant’Ambrogio and Zimmerman offer a series of recommendations for agencies that might be contemplating aggregation procedures.

One recommendation stresses the importance of defining when claims are sufficiently similar to be handled through an aggregated proceeding. Currently, parties and agencies alike have no mechanism for identifying common claims and issues. Sant’Ambrogio and Zimmerman argue that by relying on the parties to identify related claims, agencies can gain a better sense of the “nature and identity of filed claims.” Even more, agencies could build issue-coding techniques into their current docket databases. Claimants could then filter through cases raising similar legal questions and ask for an expedited case handling.

Because similar cases can be aggregated in a number of ways, Sant’Ambrogio and Zimmerman also recommend that agencies develop protocols for determining when each form of aggregation is best. Formal aggregation procedures make most sense, they say, when claims are “very ‘common’” and the relief sought does not differ much from claimant to claimant. Yet as “claim values and interest diverge,” agencies have more than one option to protect parties’ due process rights. Agencies could consider providing individuals with the ability to opt out of a proceeding. Alternatively, informal aggregation affords claimants more individualized attention. Agencies should consider the facts of each case, the legal questions at issue, and the remedies sought, argue Sant’Ambrogio and Zimmerman.

Since aggregate adjudication affects large groups of people, agencies must recognize the impact these cases can have on their rulemaking functions. To that end, Sant’Ambrogio and Zimmerman urge agencies to adopt systems that communicate when a policy decision should be codified as a rule. For example, Sant’Ambrogio and Zimmerman suggest that administrative law judges be able to issue an Advance Notice of Proposed Rulemaking after large cases. Such a notice would bring the adjudicatory decision into the rulemaking sphere, inviting interested members of the public to comment on whether the outcome should be codified in a new regulation.

Finally, Sant’Ambrogio and Zimmerman praise the experimental nature of aggregation in agencies. For one, they argue that Congress should continue “granting agencies broad discretion” on rules of procedure and practice. Agencies can then be flexible and allow experience to mold their procedure. The authors argue that this yield of power will not unjustly remove power from Congress. Instead, Sant’Ambrogio and Zimmerman claim that “aggregated cases will be more transparent to the political branches” than individual adjudications, thereby increasing agency accountability.

The committee recently adopted a final recommendation based on Sant’Ambrogio and Zimmerman’s report.