The Agency Class Action

By: Michael D. Sant’Ambrogio & Adam S. Zimmerman


The number of claims languishing on administrative dockets has become a “crisis,” producing significant backlogs, arbitrary outcomes, and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal similar administrative decisions that frequently result in reversal. Defrauded consumers miss out on fair compensation, as agencies settle their claims with wrongdoers without victim participation or meaningful judicial oversight.
Reformers appropriately call for more resources, administrative law judges, and attorneys’ fees. But surprisingly, commentators have ignored tools long used by courts to resolve common claims raised by groups of people: class actions and complex litigation procedures. Almost no administrative agency allows groups to aggregate and resolve common claims in adjudication. Accordingly, in a variety of adjudicatory pro- ceedings, agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for similar claims, and (3) deny individuals access to fair representation that aggregate procedures promise. Moreover, procedural hurdles often prevent courts from providing class-wide relief to parties in agency adjudication.
This Article argues that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims. After surveying current tools by which agencies could promote more efficiency, consistency, and legal access, this Article finds that agency class action rules more effectively resolve common disputes by (1) efficiently creating ways to pool infor- mation about recurring problems; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process.


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