Surges and Delays in Mass Adjudication
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SURGES AND DELAYS IN MASS ADJUDICATION Adam S. Zimmerman Federal courts and agencies have transformed themselves in response to surges of claims and delays in mass adjudication. But each system has done so in different ways. Courts frequently devise new case management techniques to appoint magistrate judges and organize private lawyers, facilitate the exchange of information, and collectively resolve disputes. By contrast, federal agencies often rely on centralized programs—using new rules, guidance, staffing, and most recently, artificial intelligence to address unpredictable surges and chronic delays. But new experiments in agencies and courts suggest they do not have to pursue one approach at the expense of the other. To that end, some administrative judges have embraced novel case handling techniques, employing special masters and aggregate procedures. Courts have also used policy guidance and data analysis. These experiments suggest courts and agencies can learn and borrow from each other’s experiences. How much each does so raises larger questions about adjudicative power. As federal courts have embraced informal case handling, they also have acquired more power to respond to new problems. By contrast, centralized plans often subordinate administrative judges to others in the policymaking wings of agencies and the halls of Congress. These trends may reflect differences between independent Article III courts and administrative judges who are reviewed by officers responsible for formulating policy. But combining approaches actually may strengthen how agencies make policy and the judiciary’s adherence to the rule of law— Professor of Law, Loyola Law School. 1335 1336 GEORGIA LAW REVIEW [Vol. 53:1335 allowing agencies to flexibly adapt to new problems, while offering courts opportunities to adopt coherent and informed strategies in mass adjudication. 2019] SURGES AND DELAYS 1337 TABLE OF CONTENTS INTRODUCTION ............................................................................1338 I. RESPONSES TO DELAYS IN FEDERAL COURTS AND AGENCIES .1346 A. POLICYMAKING RESPONSES TO DELAYS IN FEDERAL AGENCIES ....................................................................1346 B. CASE MANAGEMENT RESPONSES IN FEDERAL COURTS ...1352 C. CENTRALIZED POLICYMAKING VERSUS INFORMAL CASE MANAGEMENT .....................................................1355 1. The Limits of Centralized Policymaking ................1356 2. The Limits of Informal Case Management ............1359 II. EXCEPTIONS FOR FEDERAL COURTS AND AGENCIES ..............1361 III. JUDICIAL POWER TO RESPOND TO DELAYS ...........................1365 A. DECISIONAL INDEPENDENCE IN FEDERAL COURTS AND AGENCIES .............................................................1366 B. COMBINING CENTRALIZED RULEMAKING AND INFORMAL CASE MANAGEMENT CAN EFFECTUATE POLICY AND PROMOTE INDEPENDENT DECISIONMAKING ........................................................1369 CONCLUSION ...............................................................................1372 1338 GEORGIA LAW REVIEW [Vol. 53:1335 INTRODUCTION Federal courts and administrative agencies both struggle with a common problem in mass adjudication—unpredictable surges and large backlogs of claims. Consider two prominent examples: • In the early 1990s, a surge of federal asbestos claims flowed into the Eastern District of Pennsylvania, quickly transforming it into one of the largest federal multidistrict litigations ever.1 Commentators derisively referred to the federal asbestos MDL as a “black hole,” the “third level of Dante’s Inferno,”2 and even a “roach motel,” where cases checked in but never checked out.3 • After the United States withdrew troops from Iraq and Afghanistan, the veterans benefit system faced one of the largest spikes in disability claims in its 200 year history.4 The Department of Veterans Affairs’ backlog of claims grew so big that today many veterans will wait seven years to receive benefits following an appeal.5 In both situations, the federal judiciary and the administrative state confronted surging case volumes that threatened bottlenecks and delays. But the two responded in very different ways. A decade after the Supreme Court unsuccessfully urged policymakers in 1 In re Asbestos Product Liability Litigation, (MDL No. 875), 771 F.Supp. 415, 417 (J.P.M.L. July 29, 1991). 2 In re United States Lines, Inc., No. 97 CIV. 6727(MBM) 1998 WL 382023, at *7 (S.D.N.Y. July 9, 1998) (noting parties called the federal asbestos MDL a “black hole” and “the third level of Dante’s inferno”). 3 William B. Rubenstein, Procedure and Society: An Essay for Steve Yeazell, 61 UCLA L. REV. DISCOURSE 136, 146 (2013). 4 Leo Shane III, PTSD Disability Claims by Vets Tripled in the Last Decade, MIL. TIMES (July 25, 2017), https://www.militarytimes.com/news/pentagon-congress/2017/07/25/ptsd- disability-claims-by-vets-tripled-in-the-last-decade/. 5 Currently, there are over 400,000 pending appeals inside the veterans benefit system. Veterans wait an average of three years for a standard appeal to be adjudicated and approximately six years when appealing to the Board of Veterans’ Appeals. Richard Sisk, New VA Secretary Faces 400,000-Case Appeals Backlog, IT Delay, MILITARY.COM (Jul 31, 2018), https://www.military.com/daily-news/2018/07/31/new-va-secretary-faces-400000-case- appeals-backlog-it-delay.html. 2019] SURGES AND DELAYS 1339 Congress to fix the “elephantine mass of asbestos litigation,”6 a federal judge resolved over 150,000 pending asbestos cases with novel case management techniques.7 By contrast, after years of resisting attempts to resolve systemic delays in litigation,8 the Department of Veterans Affairs launched a new program with congressional funds aimed at encouraging veterans to use a streamlined process designed to avoid extensive fact-finding and appeals.9 Complex litigation and administrative adjudication share a long history. Some reformers during the New Deal viewed complex litigation and administrative agencies as complements—flexible and targeted government tools that could check the growth of concentrated private economic power.10 In the 1960s, the authors of the revised Federal Rules of Civil Procedure explicitly hoped 6 Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 166 (2003); Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999). 7 Relying on a team of magistrates and special masters, Judge Eduardo Robreno restructured the litigation—ordering the parties to produce information about existing cases and setting new timelines to prepare cases for trial and settlement expeditiously. See Hon. Eduardo C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL- 875): Black Hole or New Paradigm?, 23 WIDENER L.J. 97 (2013). 8 See Veterans for Common Sense v. Shinseki, 663 F.3d 1033 (9th Cir. 2011) (dismissing veterans’ delay claims because the court lacked jurisdiction); Monk v. Shulkin, 855 F.3d. 1312 (Fed. Cir. 2017) (authorizing the Court of Appeals for Veterans Claims to hear class actions in case alleging systemic delays); Monk v. Wilkie, 30 Vet. App. 167 (2018) (declining, in a 4-4 decision, to hear veterans’ systemic delay claims as a class); Thompson v. Wilkie, 30 Vet. App. 345 (2018) (declining to certify class for systemic delays at the VA because the pro se plaintiff could not adequately represent class). 9 See GOV’T ACCOUNTABILITY OFFICE, VA BENEFIT APPEALS, OPPORTUNITIES EXIST TO BETTER ENSURE SUCCESSFUL APPEALS REFORM (Jan. 30, 2018), https://www.gao.gov/products/GAO-18-349T (describing the VA’s new pilot program to test new appeal programs under its Rapid Appeals Modernization Program (RAMP)). 10 See Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. CHI. L. REV. 684, 686–87 (1941) (exploring how class actions, like administrative law, can “remove[] the obstacles of insufficient funds and insufficient knowledge by shifting the responsibility for protecting the interests of the individuals comprising the group to a public body”). Others did not see it that way. J.M. Landis, Business Policy and the Courts, 27 YALE L.J. 235, 237, 241–42 (1937) (contrasting the “calm of scientific inquiry” at expert agencies with the “overheated atmosphere of litigation” in courts). See generally David Freeman Engstrom, “Not Merely There to Help the Men”: Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action, 70 STAN. L. REV. 1 (2018) (describing the debate between labor and other constituencies over the use of complex litigation). 1340 GEORGIA LAW REVIEW [Vol. 53:1335 complex litigation would help courts manage large numbers of complex cases “like an administrative agency.”11 But, over the past hundred years, federal courts and administrative agencies have shared another common feature: They have fixated on—and redefined themselves over—the vexing prospect of delay. In the early twentieth century, Chief Justice Taft pushed for one of the most sweeping administrative overhauls of the federal judiciary in response to surges of new claims in district courts.12 Taft’s most controversial idea—a roving corps, or “flying squadron,”13 of federal judges capable of providing support for any court with a congested docket—never took hold.14 But forty years later, Congress passed the federal multidistrict litigation statute, which adopted the mirror image of Taft’s solution.15 Rather than send judges to districts with too many cases, a panel would send the new cases to the same judge.16 Over time, multidistrict litigation has come to