Notice & Comment

Sant’Ambrogio & Zimmerman on Class Actions and Agency Adjudication (AdLaw Bridge Series)

Over the last few years Michael Sant’Ambrogio and Adam Zimmerman have been doing very important work on the various adjudicatory tools federal agencies may have available to them to engage in aggregate agency adjudication.

First, in The Agency Class Action, published in the Columbia Law Review, they sketch out the theoretical and policy case for aggregate agency adjudication. The Administrative Conference of the United States (ACUS) was so intrigued with this initial exploration that ACUS commissioned a more extensive study with Sant’Ambrogio and Zimmerman as the academic consultants. In their ACUS report, entitled Aggregate Agency Adjudication, they investigate how agencies have experimented with class actions and other complex litigation procedures for dealing with claims in the aggregate, with interviews at various agencies, and propose a number of recommendations. The Conference voted to adopt a number of recommendations, which can be found here.

Building on their ACUS report, Sant’Ambrogio and Zimmerman have posted to SSRN a draft of a new article, entitled Inside the Agency Class Action, which is forthcoming in the Yale Law Journal. In this article, they reflect on the empirical findings from the ACUS report and argue that aggregate adjudication should become an important procedural device in the modern administrative state. Here’s a summary of the paper, from the SSRN abstract:

Federal agencies in the United States hear almost twice as many cases each year as all 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, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. 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.

Definitely go give the full article a read here. One thing I love about Sant’Ambrogio and Zimmerman’s work in this area is that they don’t confine their scholarship to the traditional law review article. In addition to the ACUS report, they’ve also done at least one law professor amicus brief (here), and they’ve penned a couple RegBlog pieces on the topic (here and here).  Although I am probably warier about combining class actions with unelected bureaucrats than Sant’Ambrogio and Zimmerman, they are careful in their analysis and qualified in their embrace of complex litigation procedures in administrative law. I look forward to their future work in this area and the debate that such work sparks in academic and policy circles.

[UPDATE 10/24: Michael Sant’Ambrogio will presenting the paper at an FIU College of Law Faculty Workshop tomorrow, October 25, 2016, and the authors will be presenting the paper at a number of conferences and workshops in the coming months.]


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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