Inside Agency Class Actions

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Most agencies enjoy authority to aggregate cases and would benefit from doing so, but very few actually do.

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Federal agencies in the United States hear almost twice as many cases each year as the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, cases often languish for years without remedy—denying justice for plaintiffs ranging from wounded veterans to students duped by dishonest for-profit colleges.

A handful of federal administrative programs, however, have quietly bucked this trend. The U.S. Equal Employment Opportunity Commission (EEOC) created an administrative class action procedure, modeled after rules that exist in federal court, to resolve federal employees’ “pattern or practice” claims of discrimination before federal administrative judges. The National Vaccine Injury Compensation Program (NVICP) uses “Omnibus Proceedings” to pool together common claims that allege a vaccine injured large groups of children. And facing an “existential” backlog of claims, the Office of Medicare Hearings and Appeals (OMHA) recently instituted a new “Statistical Sampling Initiative” to resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

Based on our prior work, the Administrative Conference of the United States—a government body that issues guidance and policy for all federal agencies—invited us to study administrative programs that aggregate claims like these. With this unusual access to agency policymakers, staff and adjudicators, we took a unique look inside administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. Overall, we found that even though most agencies enjoy substantial authority to aggregate cases, very few do so. Indeed, we identified more than 50 federal agencies with rules permitting some form of aggregation, yet we found that only a fraction of them used the formal class action or other complex litigation procedures that they had on their books. This is somewhat surprising because agencies often enjoy even more power than federal judges to group together common cases. Agencies are not constrained by Article III standing requirements or the Rules Enabling Act, which limit the ways federal courts use class actions and other complex procedures.

That being said, when agencies do employ collective procedures, they serve as vital tools for responding to rising case volumes while promoting legal access. Collective procedures can take a variety of forms. Agencies may, for instance, aggregate using formal rules, like class actions, or they may aggregate through more informal techniques, like assigning separate cases to the same adjudicator, venue, or expedited docket. In many cases, agencies have recognized the power of these collective procedures, finding that they enhance efficiency, improve consistency, and promote legal access. For example, although OMHA’s statistical sampling initiative is in its early stages, sampling will permit OMHA to resolve thousands of similar claims by the same appellants, sometimes involving the same beneficiary with only a different service date, in a handful of proceedings. Since launching the program, OMHA has been urged by medical providers to expand opportunities to aggregate and settle large numbers of claims.

Aggregate procedures also improve uniformity. The EEOC’s class action procedure helps it resolve “pattern or practice” claims of discrimination by federal employees. The EEOC deems this process indispensable in light of the volume of claims it processes each year and the potential for inconsistent judgments.

Finally, aggregation has improved access to legal and expert assistance by parties with limited resources, so that individuals can pursue claims that otherwise would be difficult to bring on their own. For example, the NVICP allows any party alleging a vaccine-related injury to benefit from the record developed in large “test cases” by the most qualified experts and experienced legal counsel.

Of course, aggregate adjudication poses challenges of its own. Aggregating cases may stretch courts’ capacity to administer justice to many people, undermine the perceived “legitimacy” of a process without individual hearings, and increase the consequences of error. But many programs we studied took steps to address these concerns. OMHA has cautiously piloted its statistical sampling program to avoid replacing old backlogs with new ones. The NVICP has relied on panels of adjudicators to reduce concerns about having one decisionmaker decide thousands of cases. Judges at both the EEOC and the NVICP ensure that lawyers in big cases possess the skill to represent large groups and that individuals voluntarily participate in the process.

Other agencies considering class actions or other complex procedures can learn from the experience of the EEOC, NVICP and OMHA. This summer, we proposed a series of recommendations to federal agencies on the use of aggregation based on our research. These recommendations were ultimately adopted by the Administrative Conference of the United States in June 2016.

First, agencies should determine whether they have a sufficient number of common claims to justify adopting rules governing aggregation. This may require developing a database to identify and track similar cases.

Second, agencies can borrow rules from complex litigation in federal courts to identify cases suitable for class treatment. These may include rules to determine: whether enough cases exist to justify aggregation and whether aggregating cases “materially advances” the resolution of those cases. In addition, agencies should determine whether they can accomplish similar goals through other tools, like informal rulemaking.

Third, agencies should ensure aggregate proceedings are transparent and legitimate. They should publish written policies for aggregating cases, assign cases to experienced, independent adjudicators, and ensure lawyers adequately represent different interest groups.

Finally, agencies should consider how to harness aggregation to coordinate and improve the way they make policy. Large cases give agencies an opportunity to discover problems that might escape their attention in scattered, individual trials. At a minimum, agencies should publish their outcomes and consider whether to codify them into more generally applicable rules.

Our look inside the way that agencies use complex procedures offers important lessons for an often-overlooked bottleneck in ordinary citizens’ access to justice: the millions of cases stuck in administrative courts. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

Michael Sant’Ambrogio

Michael Sant’Ambrogio is a professor of law at Michigan State University College of Law.

Adam S. Zimmerman

Adam S. Zimmerman is a professor of law at Loyola Law School, Los Angeles.