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.
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allowing agencies to flexibly adapt to new problems, while offering courts opportunities to adopt coherent and informed strategies in mass adjudication.
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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
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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.
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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).
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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 occupy a central place in the federal court system.17 Agencies have also transformed themselves to combat surges of claims and protracted delays in adjudication. For example, when
11 See, e.g., Benjamin Kaplan, A Prefatory Note, 10 B.C. INDUS. & COM. L. REV. 497, 497 (1969) (noting that “whereas the old Rule [23] paid virtually no attention to the practical administration of class actions, the revised Rule dwelt long on this matter . . . by confirming the courts’ broad powers and inviting judicial initiative”); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) (“[F]rom the plaintiffs’ point of view a class action resembles a ‘quasi- administrative proceeding, conducted by the judge.’” (quoting 3B J. MOORE & J. KENNEDY, MOORE'S FEDERAL PRACTICE II 23.45[4-5] (1984))). 12 Taft’s hope for an administratively integrated federal judicial system materialized in the newly created Judicial Conference, and later, the Administrative Office of the U.S. Courts, which was specifically designed to respond to “congested districts or circuits.” PETER GRAHAM FISH, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 33 (1973). 13 William H. Taft, Possible and Needed Reforms in the Administration of Justice in the Federal Courts, 8 A.B.A J. 601, 601 (1922). 14 Andrew D. Bradt, “A Radical Proposal”: The Multidistrict Litigation Act of 1968, 165 U. PA. L. REV. 831, 849 (2017). 15 Id. at 863 (describing the movement toward “coordinating cases pending around the country dealing with subjects as diverse as patents and airplane crashes”). 16 28 U.S.C. § 1407(d) (1976). 17 How central has become a point of contention. Corporate defendants have argued that the number of pending cases in multidistrict litigation has grown to occupy more than fifty percent of the federal docket over the past decade, excluding other high volume cases, like social security and prison litigation. See RULES4MDLS, MDL Cases Surge to Majority of Entire Federal Civil Caseload, Mar. 14, 2019, https://www.rules4mdls.com/copy-of-new-data- on-products-liabil. But the number of filed cases in multidistrict litigation is actually far lower, reaching a high o 21%, as Margaret Williams explains in this volume. Margaret S. Williams, The Effect of Multidistrict Litigation on the Federal Judiciary over the Past 50 Years, 53 GA L. REV. 1245, 1272 (2019).
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the backlog of disability claims at the Social Security Administration increased eightfold in the 1970s, courts18 and policymakers criticized the agency as it blossomed into the largest system of administrative adjudication in the western world.19 In response, the Social Security Administration developed vocational “grids”—national formulas that took into account average workers’ employment prospects based on their age, education and skill level—to quickly determine whether they could reenter the workforce.20 When the Supreme Court broadly endorsed the use of these rules,21 other agencies quickly followed suit—adopting mechanical techniques to reduce the complexity of their hearings, while expediting benefit decisions. This new kind of bureaucratic justice would soon reshape adjudication across the administrative state.22 This essay argues that, despite their shared interest in fighting delays, federal courts and agencies frequently respond in very different ways. Like the Social Security Administration and Department of Veterans Affairs described above, many agencies react to delays in mass adjudication with new centralized policies. Relying on new rules, policy guidance, flexible staffing, and even artificial intelligence, agencies have rolled out new programmatic solutions to address persistent delays.23 New administrative plans to reduce delay in high-volume adjudication reflect one comparative advantage that agencies enjoy over courts: the ability to adopt new
18 See, e.g., White v. Mathews, 559 F.2d 852, 854 (2d Cir. 1977), cert. denied, 435 U.S. 908 (1978) (noting the “glacial pace” with which the Social Security Administration adjudicated claims for disability payments). 19 Shu Fan Lee, Administrative Delays Involving Social Security Disability Claims: Heckler v. Day Revisited, 2 ADMIN. L.J. 191, 195 (1988) (The problem of adjudicatory delay “has inspired almost annual congressional dispute”). 20 See Broz v. Schweiker, 677 F.2d 1351, 1355 (11th Cir. 1982), cert. granted, judgment vacated sub nom. Heckler v. Broz, 461 U.S. 952, 103 S. Ct. 2421 (1983) (describing the Social Security Administration’s “grid” system). 21 Heckler v. Campbell, 461 U.S. 458, 468 (1983) (“To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder needlessly an already overburdened agency.”). 22 William H. Simon, Legality, Bureaucracy, and Class in the Welfare System, 92 YALE L.J. 1198 (1983); Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65 (1983). 23 See Part I.A., infra.
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substantive policies and increase their workforce under open-ended delegations of authority from Congress.24 Of course, federal courts will occasionally adopt new procedural rules in the rare event that a consensus exists to do so.25 But, without the same resources and flexibility to make procedural and substantive laws,26 courts often rely on less formal authority to respond to delay.27 Federal courts use informal case management techniques to assess cases on their docket and to facilitate quick adjudication or settlement.28 With a relatively fixed workforce,
24 Chris Walker & Melissa Wasserman, The New World of Agency Adjudication, 107 CAL. L. REV. 141, 147 (2019) (“[V]esting final policy-making authority in the agency head remains a critical feature—one which sets agency adjudication apart from disputes resolved by the Article III judiciary or Article I legislative courts.”); JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY BENEFIT CLAIMS 25–26 (1983) (emphasizing the importance of control by agency heads over policy to ensure consistent outcomes in adjudication). 25 Stephen B. Burbank & Sean Farhang, Litigation Reform: An Institutional Approach, 162 U. PA. L. REV. 1543, 1546 (2014) (demonstrating how Congress “has made it more difficult to use the rulemaking process for major civil litigation reform” though open meeting requirements) 26 Of course, courts can make substantive and procedural rules too. Courts, like agencies, make substantive law when they fill gaps in legislation through case-by-case adjudication. See Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405, 428–34 (2008) (describing delegations to courts). And the Supreme Court can adopt new procedural rules through a central rulemaking process. Glen Staszewski & Lumen N. Mulligan, The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law, 59 UCLA L. REV. 1188 (2012) (recommending the Supreme Court use rulemaking procedures instead of case-by-case adjudication to reform proceural rules to improve participation and transparency). But only agencies can adopt new substantive policies through centralized rulemaking. And, unlike courts, agencies do not have to subject new procedural rules to public comment. Compare Burbank & Farhang, supra note 25 with 5 U.S.C. 553(b)(A) (exempting rules of “agency organization, procedure, or practice” from notice and comment requirements). 27 FED. JUDICIAL CTR., MANUAL FOR COMPLEX LITIGATION 3 (4th ed. 2004)(“judges are encouraged to be innovative and creative to meet the needs of their case.”); see also id. at § 10.1, at 8 (encouraging judges to “tailor case-management procedures to the needs of the particular litigation.”) 28 Nora Freeman Engstrom, The Lessons of Lone Pine, 129 YALE L.J. _ (forthcoming 2019) (manuscript at 6)(describing the “freewheeling, improvisational spirit,” of federal judges who have “worked outside of accepted channels to slash attorneys’ fees, reached across jurisdictional boundaries to coordinate with state-court counterparts, appointed advisory panels of scientific experts, and engineered settlement agreements”); Pamela K. Bookman & David L. Noll, Ad Hoc Procedure, 92 N.Y.U. L. REV. 767, 783 (2017) (observing that not all procedure is established in advance of proceedings); see also Tobias Barrington Wolff, Managerial Judging and Substantive Law, 90 WASH. U. L. REV. 1027, 1030 (2013) (describing Judge Alvin Hellerstein’s innovations in the 9/11 first responders’ litigation); Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative
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courts also frequently rely on public and private delegations of their authority to magistrate judges, special masters and teams of private lawyers tasked with reducing duplicative discovery and motion practice.29 Both techniques—centralized policymaking and informal case management—present different costs and benefits. Agency policymaking offers more predictable and consistent case handling, while promoting more informed discussions over the best way to process cases.30 Those processes are also subject to democratic oversight by the political branches of government. Case management techniques in federal court, by contrast, offer more flexible responses to surges in case filings.31 Those tailored responses may also be a better fit for claimants who otherwise cannot wait for adjudicators to interpret and apply new rules to expedite pending claims.32 But the question over how institutions use centralized policymaking or informal case management raises larger questions about power: How much power should judges have to respond to delays efficiently and fairly? If not judges, then who? As federal judges develop innovative case management techniques in large mass adjudications, they also have assumed new powers to respond
Agencies, 97 COLUM. L. REV. 2010, 2018–19 (1997) (describing the innovative methods to reach settlement employed by Judge Jack Weinstein). 29 Howard M. Erichson, Mass Tort Litigation and Inquisitorial Justice, 87 GEO. L.J. 1983, 1983 (1999) (discussing the appointment of independent experts).Linda Silberman, Judicial Adjuncts Revisited: The Proliferation of Ad Hoc Procedure, 137 U. PA. L. REV. 2131, 2131 (1989) (describing how “trans-substantive rulemaking in fact has been eroded and replaced by ad hoc versions of specialized rules” by judicial reliance on magistrate judges and special masters). 30 M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1386, 1398 (2004) (discussing the consequences of an agency’s use of policymaking as a case management tool). 31 Engstrom, supra note 28, at 7 (discussing how informal case management solutions permit “commendable customization” and allow the “’forum to fit the fuss’”); Bookman & Noll, supra at 28, 774 (“Ad hoc procedure overcomes problems that cannot be solved using the existing procedural structures, and may be necessary” to provide justice “in cases that defy customary judicial management.”); Jack B. Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?, 137 PA. L. REV. 1901, 1911 (1989) (“The numerous permissions in the Rules for local imagination make clear that simplicity and workability, not uniformity, were paramount.”) 32 SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (“Problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule.”)
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to new social problems.33 By contrast, new rules, electronic case management tools, data analytics and other techniques have subordinated the power of administrative adjudicators to other actors in the policymaking wings of agencies and the halls of Congress.34 Part I of this essay compares judicial responses to surges and delays in federal courts and administrative programs. Federal agencies frequently rely on policymaking, in the form of new rules and policy guidance, petitions to Congress for more funds to increase hearing officers and staff, as well as pilot testing and data analytics. Courts, by contrast, have turned to more informal case management techniques that identify claims on their dockets, facilitate more information about their merits, and collectively resolve them. Policymaking ensures more informed and consistent adjudication, but may fail to flexibly respond to other systemic delays because of political constraints and Due Process limits against retroactive rulemaking. On the other hand, informal case management may prove more flexible and responsive to sudden surges of claims, but they are also less predictable, consistent and informed as formal rules adopted following an opportunity to solicit public comments and other data. Part II explores exceptions for both courts and agencies. In rare cases, administrative judges have experimented with novel case handling techniques, including the use of special masters, pilot programs and aggregate adjudication. Federal courts also have relied on procedural rulemaking, policy guidance and data analysis
33 David M. Jaros & Adam S. Zimmerman, Judging Aggregate Settlement, 94 WASH. U. L. REV. 545, 574–75 (2017) (describing examples of creative assertions of judicial authority in complex civil cases); Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. REV. 71, 73 (2015); Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal, 63 VAND. L. REV. 107, 149–51 (2010). 34 See, e.g., Assoc. of Admin. L. Judges, Inc. v. Heckler, 594 F. Supp. 1132, 1141 (D.D.C. 1984) (challenging the Social Security Administration’s centralized review program on the grounds that it compromised adjudicator’s decisional independence); see also David Ames et al., Due Process and Mass Adjudication: Crisis and Reform, 72 STAN. L. REV. (forthcoming 2019) (manuscript at 20) (summarizing case load crisis that lead to centralized program designed to expedite cases); Rachel Frazen, Immigration Judges Say They’re Leaving Jobs Because of Trump Policies, THE HILL (Feb. 13, 2019), https://thehill.com/latino/429940- immigration-judges-say-theyre-leaving-jobs-because-of-trump-policies (“The job has become exceedingly more difficult as the court has veered even farther away from being administered as a court rather than a law enforcement bureaucracy.”).
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from the Federal Judicial Center, an independent research organization inside the federal court system. These exceptions suggest courts and agencies do not have to rigidly pursue rulemaking or case management to the exclusion of the other. Courts and agencies can learn from each other and adopt more hybrid approaches to unpredictable surges and chronic delays. Part III explores how the choice between rulemaking and case management raises the larger question about how to allocate judicial power inside federal courts and agencies. By relying on centralized rules, new staffing policies, and data analysis, agencies have consequently limited administrative adjudicators’ control over their own individual dockets. By contrast, the federal judiciary’s heavy reliance on independent case management affords life- tenured judges substantial power to manage the cases before them. These general trends may be seen as a natural difference between federal courts and administrative judges. After all, the outcomes of administrative hearings are reviewed by officers charged with implementing the agencies’ broader policies and goals.35 But tight limits on administrative judges can constrain an agency’s policy agenda—preventing hearing officers from flexibly responding to new kinds of claims and agency heads from learning about them.36 Conversely, by over-relying on case management, courts themselves may miss out on opportunities to provide more consistent, data-driven responses to surges and delays.37 Combining approaches from each system may help agencies achieve their policy goals, while supporting the judiciary’s commitment to the rule of law. In this way, this Article adds to a small body of legal scholarship highlighting ways in which the administrative agencies
35 See, e.g, 5 U.S.C. § 557(b) (1976) (“On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision . . . .”). 36 Michael D. Sant’Ambrogio & Adam S. Zimmerman, Inside the Agency Class Action, 126 YALE L.J. 1634, 1688–89 (2017) (describing how allowing administrative adjudicators to manage and aggregate cases has offered “agency heads . . . a thoughtful first crack at important questions of law and policy by the agency’s most experienced and expert adjudicators, with the benefit of a fully developed record and competent counsel”). 37 See Robert G. Bone, Who Decides? A Critical Look at Procedural Discretion, 28 CARDOZO L. REV. 1961, 1986 (2007) (describing “bounded rationality constraints, information access obstacles, and strategic interaction effects” when judges exercise procedural discretion); Judith A. Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. CHI. L. REV. 491, 548 (1986).
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can function like courts and the judiciary itself functions as an administrative agency.38
I. RESPONSES TO DELAYS IN FEDERAL COURTS AND AGENCIES
A. POLICYMAKING RESPONSES TO DELAYS IN FEDERAL AGENCIES
The largest mass adjudication systems in the federal administrative state include four large agencies: Social Security Administration, the Executive Office for Immigration Review, the Board of Veterans Appeals, and the Office of Medicare Hearings and Appeals, which together hear several times as many cases as our federal courts.39 Reflecting Professor Jerry Mashaw’s call for a new focus on the “internal law of administration,”40 these agencies (and others) have responded to rising caseloads with new programmatic solutions—adopting rules to narrow the scope of adjudication, piloting new initiatives, identifying and disposing of particularly time consuming cases, and when feasible, hiring new staff and adjudicators and offering mass settlements to cut backlogs. More recently, they have embraced artificial intelligence and new forms of data analysis to identify ambiguous rules, train adjudicators, and respond to particularly time-consuming cases. First, agencies have crafted new rules to reduce the number of issues that administrative judges have to decide in a hearing. Since the 1950s, agencies have used their power to narrow the range of
38 See, e.g., Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. PA. L. REV. 1 (2011); Glen Staszewski & Lumen N. Mulligan, The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law, 59 UCLA L. REV. 1188 (2012); Sant’Ambrogio & Zimmerman, supra note 36; Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 VA. L. REV. 1 (2018); David L Noll, The Rule of Law in Multidistrict Litigation, 118 Mich. L. Rev. _ (forthcoming 2019) (manuscript at 16), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3371952 39 See Adjudication Research, Joint Project of ACUS and Stanford Law School, http://acus.law.stanford.edu/reports/caseload-statistics (listing over 800,000 claims filed at the Social Security Administration, 384,000 at Office of Medicare Hearings and Appeals, 270,000 at the Executive Office for Immigration Review, and 41,000 pending at the Board if Veterans Appeals); Daniel E. Ho, Cassandra Handan-Nader, David Ames & David Marcus, Due Process and Mass Adjudication: Crisis and Reform, 72 STANFORD L. REV. ___ (forthcoming 2019) (describing SSA, BVA, and EOIR as, in many ways, “the most prominent examples of mass adjudication in the federal administrative state.”) (manuscript at 3), available at https://dho.stanford.edu/wp-content/uploads/CrisisandReform.pdf. 40 MASHAW, supra note 24, at 13. See also generally ADMINISTRATIVE LAW FROM THE INSIDE OUT: ESSAYS ON THEMES IN THE WORK OF JERRY L. MASHAW (Nicholas R. Parrillo ed., 2017)
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issues in adjudication in order to respond to surges across many different areas of law—from broadcast licenses to disability applications.41 Agencies also enjoy substantial authority to shape their own “subordinate questions of procedure,” including “the scope of the inquiry,” whether to hear cases “contemporaneously or successively,” or whether to consolidate cases or allow multiple parties to intervene.42 Since the late 1960s, administrative law scholars have generally endorsed substantive and procedural rulemaking inside agencies, finding rulemaking to be more transparent, open to different interest groups and useful to understand complex facts and tradeoffs when adopting broad policy reforms.43 Agencies continue to use rules to streamline hearings by creating evidentiary presumptions, updating policy manuals, lobbying Congress, and designing new programs to streamline adjudication and reduce delay. Regional offices in the Department of Veterans Affairs, for example, have long relied on evidentiary presumptions and changes to the veteran’s manual to accelerate benefit payments for wartime-related injuries.44 The National Childhood Injury Vaccine Compensation Program has updated administrative tables of vaccine related injuries in response to surges of claims in the 1990s.45
41 See, e.g., Heckler v. Campbell, 461 U.S. 458, 467 (1983) (social security grids); United States v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956) (broadcast licenses). 42 FCC v. Pottsville Broad. Co., 309 U.S. 134, 138, 143 (1940); see also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524 (1978) (“[T]his Court has for more than four decades emphasized that the formulation of procedures [is] basically to be left within the discretion of the agencies . . . .”). 43 See Michael D. Sant'Ambrogio & Adam S. Zimmerman, The Agency Class Action, 112 COLUM. L. REV. 1992, 2067 (2012) (collecting sources summarizing this trend); MICHAEL ASIMOW & RONALD M. LEVIN, STATE AND FEDERAL ADMINISTRATIVE LAW § 5.1 (4th ed. 2014) (describing historical shift from adjudication to rulemaking as primary method by which agencies implement policy). 44 Jeffery Parker, Two Perspectives on Legal Authority Within the Department of Veterans Affairs Adjudication, 1 VETERANS L. REV. 208, 212 (2009) (“The concept of incorporating administrative guidance as part of the adjudication process is so woven into VBA custom and practice that such practice and formal management structure only reinforces the concept that there is little, if any, distinction between legal authority and administrative management authority.”). 45 See National Vaccines Injury Compensation Program Revision of the Vaccine Injury Table, 60 Fed. Reg. 7678, 7694 (Feb. 8 1995), revised National Vaccine Injury Compensation
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When agencies lack authority to make rules themselves, they may employ liaisons to educate and lobby Congress for new rules that augment their authority to respond to delays.46 For example, following a surge of nearly 600,000 claims in the nation’s Medicare Courts, the Department of Health and Human Services asked Congress to give the Office of Medicare Hearings and Appeals more funds, adjudicators, and authority to craft rules to streamline pending cases.47 OMHA was able to shrink its backlog over the next year by over 30% to less than 445,000 as of July 2018.48 Second, and related, agencies may experiment with new programs to improve efficiency, while testing claimants’ receptiveness for different reforms. The Veterans Administration recently launched its Rapid Appeal Modernization Program (RAMP) promising veterans quick decisions in less than 120 days.49 The program hoped to allow the VA to test veterans’ interest in forgoing appeals and vocational evaluations that have been thought to slow down the adjudication process.50 The Social Security
Program: Revisions and Additions to the Vaccine Injury Table – II, 62 Fed. Reg. 7685, 7688– 89 (Feb. 20 1997). 46 Christopher J. Walker, Legislating in the Shadows, 165 U. PA. L. REV. 1377, 1377 (2017) (“[A]gencies provide confidential ‘technical drafting assistance’ on legislation that originates with congressional staffers. This technical drafting assistance provides Congress with agency expertise on the subject matter.”); Jarrod Shobe, Agencies as Legislators: An Empirical Study of the Role of Agencies in the Legislative Process, 85 GEO. WASH. L. REV. 451, 451 (2017) (“The interviews reveal that agencies are deeply involved in drafting and reviewing statutory text before enactment, and show that Congress often relies heavily on agencies’ significant legislative resources and expertise.”). 47 See Steven Porter, Medicare to Eliminate Appeals Backlog within 4 Years, HHS Tells Judge, HEALTHLEADERS (Aug. 7, 2018), https://www.healthleadersmedia.com/finance/ medicare-eliminate-appeals-backlog-within-4-years-hhs-tells-judge (“After years of HHS explaining that it needed more money to end the OMHA backlog, Congress boosted the office's appropriation by 70% last March . . . .”). 48 Id. 49 See GOV’T ACCOUNTABILITY OFFICE, supra note 10 (describing the VA’s new pilot program to test new appeal programs under its Rapid Appeals Modernization Program (RAMP)); GOV’T ACCOUNTABILITY OFFICE, VA DISABILITY BENEFITS, ADDITIONAL PLANNING WOULD ENHANCE EFFORTS TO IMPROVE THE TIMELINESS OF APPEALS DECISIONS (Mar. 2017) (recommending VA pilot program to assess[] process reform—relative to the current process— that ensures transparency in reporting to Congress and the public on the extent to which VA is improving veterans’ experiences with its disability appeals process”). 50 See GOV’T ACCOUNTABILITY OFFICE, supra note 10 (“This program, which VA refers to as RAMP, is intended to reduce legacy appeals by providing veterans with a chance for early resolution of their claims within VBA while the Board focuses on reducing its inventory of legacy appeals, according to VA.”).
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Administration has similarly piloted programs in its regional offices before taking them nationwide.51 Third, agencies can staff up—borrowing adjudicators from other agencies, or on more rare occasions, hiring new hearing officers with funds from Congress. The Center for Medicaid and Medicare Services and the Executive Office of Immigration Affairs have pursued new funding to hire more administrative judges in response to surges and delays.52 For example, in 2018, the Office Medicare Hearings and Appeals obtained new funding from Congress to hire eighty more adjudicators and facilitate new settlement programs, announcing that it planned to end its backlog by 2022.53 The Social Security Administration’s CARES program devotes a special cadre of staff attorneys to review and resolve straightforward disability cases without hearings.54 New hires have not always successfully reduced backlogs.55 And, in many cases, agencies may be saddled by hiring freezes.56 But the flexibility agencies enjoy to manage the number of adjudicators and lawyers
51 SOCIAL SECURITY ADMIN., 2017 Updated Compassionate And Responsive Service (CARES) and Anomaly Plan, 9 (2017), https://www.ssa.gov/appeals/ documents/2017_Updated_CARES_Anomaly_Plan.pdf (describing how SSA piloted the “1,000 Plus Page Case Review” Program,, which assigned “decision writers” to review and summarize decisions for particularly complex cases). 52 See Chistobal Ramón & Tim O’Shea, Why Hiring More Judges Would Reduce Immigration Court Backlogs, BIPARTISAN POLICY CTR. (July 25, 2018), https://bipartisanpolicy.org/blog/why-hiring-more-judges-would-reduce-immigration-court- backlogs/ (“Over the last 10 years, the backlog for immigration court cases has expanded at a significant pace as the system’s overstretched judges struggle to work through their extensive dockets.”). 53 See Defendant’s Status Report and Response to Plaintiffs’ Proposed Non-Deadline Remedies at 7, American Hospital Ass’n v. Azar (D.D.C Aug. 3, 2018) (No. 14-cv-00851) (“With this additional appropriation, OMHA plans to increase ALJ staffing by approximately 80 ALJs and 600 new positions over the next 14 months . . . . This is projected to enable OMHA to resolve around nearly 188,000 appeals per year, more than doubling its FY 2017 disposition capacity . . . .”). 54 SOCIAL SECURITY ADMIN., supra note 51, at 7–8. 55 TRAC Social Security Admin., Government Falters in Effort to Reduce Massive Backlog of Disability Hearings, June 20, 2011, https://trac.syr.edu/tracreports/ssa/253/ (describing how the Social Security Administration’s efforts to hire more adjudicators and adopt new management plans only temporarily addressed persistent backlogs, which varied significantly across regions). 56 SOCIAL SECURITY ADMIN., supra note 51, at 3 (describing how “our shortage of decision writers resulted in a doubling of the number of ALJ decisions waiting to be written” to “almost 70,000 cases”); John Bowden, DOJ to Pause Hiring of Immigration Judges Due to Budget Constraints: Report, THE HILL (Mar. 6, 2019), https://thehill.com/homenews/administration/ 432982-doj-to-pause-hiring-of-immigration-judges-due-to-budget-constraints.
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involved in mass adjudication, compared to Article III judges, represents another important way they can respond to delay. Fourth, agencies may settle large volumes of claims to avoid delay.57 The Environmental Appeals Board for a time settled thousands of claims brought by farmers seeking permits under the Clean Water Act.58 The Security Exchange Commission frequently settles claims for securities fraud involving officers and directors.59 In October 2014, Medicare offered to resolve hundreds of thousands of billing disputes by globally offering to pay hospitals a flat percentage of their face value.60 Finally, agencies have increasingly turned to electronic case management, artificial intelligence and “big data” to reform ambiguous rules and retrain hearing officers.61 In 2011, the Social Security Administration began coding the decisions of its administrative law judges to track which rules generated confusion, dissension, and delay in Social Security hearings.62 Among other things, administrators coded different rationales used to resolve approximately 2,000 types of decisions in different disability claims,
57 Jaros & Zimmerman, supra note 33, at 564; Daniel T. Deacon, Deregulation Through Nonenforcement, 85 N.Y.U. L. REV. 795, 813–16 (2010) (describing industry-wide settlements with agencies). 58 See Ass’n of Irritated Residents v. E.P.A., 494 F.3d 1027, 1029 (D.C. Cir. 2007) (noting that the Environmental Appeals Board has approved over 2,500 settlement agreements). 59 Urska Velikonja, Securities Settlements in the Shadows, 126 YALE L.J. F. 124, 125–26 (2016), http://www.yalelawjournal.org/forum/securities-settlements-in-the-shadows. 60 Press Release, Ctrs. for Medicare & Medicaid Servs., Inpatient Hospital Reviews, https://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/ Medicare-FFS-Compliance-Programs/Medical-Review/InpatientHospitalReviews.html (last visited Oct. 6, 2016) [hereinafter Inpatient Hospital Reviews]; Reed Abelson, Medicare Will Settle Short-Term Care Bills, N.Y. TIMES (Aug. 29, 2014), http://www.nytimes.com/2014/08/30/business/medicare-will-settleappeals-of-short-term- care-bills.html. 61 See generally Felix F. Bajandas & Gerald K. Ray, Implementation and Use of Electronic Case Management Systems in Federal Agency Adjudication (May 23, 2018), https://www.acus.gov/report/final-report-implementation-and-use-electronic-case- management-systems-federal-agency (report to the Administrative Conference of the United States). 62 See Gerald K. Ray & Jeffery S. Lubbers, A Government Success Story: How Data Analysis by the Social Security Appeals Council (with a Push from the Administrative Conference of the United States) Is Transforming Social Security Disability Adjudication, 83 GEO. WASH. L. REV. 1575, 1593 (2015).
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ultimately tracking millions of disability opinions in a sophisticated, electronic database.63 One of the most ambitious attempts to reduce delays using artificial intelligence is the Social Security Administration’s new “INSIGHT” System.64 Social Security adjudicators began using the system as part of a voluntary pilot program in 2015.65 As administrative judges draft decisions, INSIGHT uses natural language processing and machine learning to spot errors and inconsistencies in real time. To do so, INSIGHT might check to see whether a functional impairment described in the opinion, like carpal tunnel syndrome, is consistent with Department of Labor classifications.66 Or INSIGHT might flag passages of draft decisions where the administrative judge did not adequately support his or her findings. Early results suggest that the program saves time by assisting adjudicators as they draft opinions, as well as in reduced remands to fix errors following appeals.67 The movement towards big data has generated a lot of attention in administrative adjudication.68 The Administrative Conference of the United States, a federal body that provides guidance to all federal agencies, commissioned studies on electronic case management and artificial intelligence in agency proceedings.69 Relying on its current system, the Social Security Administration has pinpointed cases pending for over 1,000 days to identify which rules generated unnecessary ambiguity, litigation, or outlying outcomes.70 The Social Security Administration’s use of data
63 See id. (“[P]olicy variables could be assembled into a decision tree showing the appropriate paths that should be followed to reach each of the approximately 2,000 possible outcomes in disability claims.”). 64 See David Freeman Engstrom & Daniel E. Ho, Process as Product, Process as Punishment: Algorithmic Adjudication and Enforcement in the Administrative State 8-9 (2019) (unpublished draft on file with author); Bajandas & Ray, supra note 61, at 48-49. 65 Bajandas & Ray, supra note 61, at 48 66 See Engstrom & Ho, supra note 64, at 8. 67 Id. at 9. 68 See Cary Coglianese & David Lehr, Regulating by Robot: Administrative Decision Making in the Machine-Learning Era, 105 GEO. L.J. 1147, 1186-91 (2017) (examining the potential for “adjudication by algorithm” in administrative agencies). 69 See Press Release, ACUS, ACUS Announces New Initiatives on the Use of Artificial Intelligence in the Federal Administrative Process (Nov. 28, 2018) (examining, among other things, “existing and potential uses of artificial intelligence to improve administrative adjudication”); Bajandas & Ray, supra note 61, at 3. 70 Ray & Lubbers, supra note 62, at 1604.
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analytics helped reduce processing times by as much as thirty percent.71 Officials inside the Social Security Administration have also used data analysis to clarify rules, update policy manuals, and retrain adjudicators.72
B. CASE MANAGEMENT RESPONSES IN FEDERAL COURTS
Lacking the same ability to develop new substantive policies as federal agencies, courts often use less formal techniques to respond to surges of new claims. These include novel case-management techniques that identify cases on their docket and help parties exchange information to facilitate adjudication (or more frequently, settlement). Informal techniques have permitted federal judges to narrow the scope of issues for trial, obtain more information about the cases pending before them, test claimants’ appetites for different remedies and outcomes, alleviate their workload, and facilitate massive settlements. First, federal courts in multidistrict litigation have developed a number of procedures to narrow the range of issues for trial. Many judges impose case management orders that require parties to produce information about the merits of their disputes early in the process.73 The process has enabled federal judges and parties to identify the relative merits of many different claims early, reducing the pressure on dockets and cost on attorneys. For example, Judge Eduardo Robreno successfully resolved over 150,000 asbestos claims in less than five years—on the very docket parties once
71 Id. 72 Bajandas & Ray, supra note 61, at 30. 73 See Engstrom, supra note 28, at 17-20; MARGARET S. WILLIAMS ET AL., FED. JUDICIAL CTR., PLAINTIFF FACT SHEETS IN MULTIDISTRICT LITIGATION: PRODUCTS LIABILITY PROCEEDINGS 2008–2018, at 3 (2019) (reporting fact sheets were used in over 100 actions); Abbe R. Gluck, Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure, 165 U. PA. L. REV. 1669, 1672 (2017); Jaime Dodge, Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation, 64 EMORY L.J. 329, 351 (2014); Duke Law Center for Juridical Studies, Standards and Practices for Large and Mass-Tort MDLs 42, 101 (2014) (“The initial case-management order should inform counsel that the leadership structure will be discussed at the initial case-management conference and direct them to be prepared to identify case-specific issues that may inform the appropriate structure.”); MANUAL FOR COMPLEX LITIGATION (FOURTH) § 20.132 (2004) (advising that judges deem rulings on some limited, but common, issues like statutes of limitations to apply to other cases and make available discovery already taken to newly filed cases to streamline cases).
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referred to as the “black hole” of multidistrict litigation—by helping the steering committees of lawyers identify ways to sort large numbers of very different claims early in the process.74 Second, courts have used case management procedures to test parties’ appetite for alternative global settlement programs.75 When large numbers of hip implants began to fail in patients in the late 2000s, thousands of cases were consolidated in the federal courts.76 After five thousand of those cases were centralized before Judge Donovan Frank in the United States District of Minnesota and Judge Brian Martinotti in New Jersey state court, the court instituted a novel “bellwether settlement” process.77 A sample of forty plaintiffs with various injuries agreed to individually mediate their disputes.78 Lawyers on a negotiating committee then used anonymized data from those individual mediations to identify common concerns of claimants, test their willingness to accept different remedies, and broker a global settlement.79 Less than eighteen months after the cases were filed, over 95% of the plaintiffs had accepted offers from the global settlement program.80 Third, although courts lack the same flexibility to rely on additional judges as agencies, courts will frequently delegate power to magistrate judges and private parties to respond to influxes of new cases.81 One recent study found that judges employed special masters in 21% of products-liability MDL cases and used magistrate judges in 62% of antitrust MDL cases and 48% of sales practice MDLs.82
74 Robreno, supra note 7. 75 Melissa J. Whitney, BELLWETHER TRIALS IN MDL PROCEEDINGS: A GUIDE FOR TRANSFEREE JUDGES 41 (2019) (observing that “mediation values obtained through a more methodical, overseen third-party process better inform global settlement than settlements reached in individual cases on the eve of a bellwether trial.”); Adam S. Zimmerman, The Bellwether Settlement, 85 FORDHAM L. REV. 2275, 2282 (2017). 76 Zimmerman, supra note 75, at 2282. 77 Id. at 2284. 78 Id. at 2277. 79 Id. at 2286. 80 Id. at 2277. 81 CATHERINE R. BORDEN, FED. JUDICIAL CTR., MANAGING PROPOSED CLASS ACTIONS IN MULTIDISTRICT LITIGATION 11 (2015) (“Special masters, while still somewhat rare, are employed much more often in MDL proceedings than in federal litigation in general.”). 82 George C. Hanks, Searching from Within: The Role of Magistrate Judges in Federal Multi-District Litigation, 8 FED. CTS. L. REV. 35, 60 (2015); THOMAS E. WILLGING ET AL., FED. JUDICIAL CTR., SPECIAL MASTERS INCIDENCE AND ACTIVITY: REPORT TO THE JUDICIAL
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Fourth, judges may employ data analytics and coding in their own cases to help exchange information and prioritize claims for trial.83 After the September 11 attacks, thousands of recovery workers sued New York City for injuries they claimed to have suffered as a result of exposure to contaminants at the site.84 Judge Hellerstein employed two special masters to create a “core discovery database,” requiring counsel to produce and code the personal and medical histories for 10,000 Ground Zero workers to categorize types of injuries and claimants best suited for trial.85 In other cases, judges have relied on their inherent authority to develop protocols for the use of predictive coding—automated approaches to discovery that use machine learning in document review—in e-discovery.86 Last, but far from least, federal judges facilitate settlement. According to a 2016 Report to the Judicial Panel of Multidistrict Litigation, in most of these cases, judges managed “settlements … involving a majority or a substantial number of cases” using a wide variety of case management techniques.87 Some judges have explicitly warned against trials, which may produce outlier or
CONFERENCE’S ADVISORY COMMITTEE ON CIVIL RULES AND ITS SUBCOMMITTEE ON SPECIAL MASTERS 9 (2000). 83 See also Whitney, supra note 75, at 32 (collecting cases where “courts have requested that the parties utilize software that gathers and groups data from … electronic fact sheets and produces summary reports on them.”) 84 Alvin K. Hellerstein et. al., The 9/11 Litigation Database: A Recipe for Judicial Management, 90 WASH. U. L. REV. 653, 653 (2013). 85 In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 66 F.Supp. 3d 477, 479 (S.D.N.Y. 2015) (describing method used to categorize the plaintiffs in “a tiered ranking system based upon the severity of the injuries as reflected in standard medical tests” into a core discovery database to select bellwether cases and facilitate settlement); Hellerstein, supra note 84,at 656 (“It became clear that the only way that anyone could get their arms around the factual complexities of this case was to construct an electronically searchable database.”). 86 See, e.g., Moore v. Publicis, 287 F.R.D. 182, 192 (S.D.N.Y. 2012), adopted sub nom Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ACL) (AJP), 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012) (listing the factors that justified the use of predictive coding); Case Management Order, In re Actos (Pioglitazone—Prods. Liab. Litig.), No. 6-11-md-2299, 2012 WL 3899669, *3 (W.D. La. July 30, 2012) (creating protocol for computerized materials in a protective order); Order Approving the Use of Predictive Coding for Discovery, Global Aerospace, Inc. v. Landow Aviation, L.P., No. CL 61040, 2012 WL 1431215 (Va. Cir. Ct. Apr. 23, 2012) (allowing defendants to use predictive coding for electronically stored information); see also Dana A. Remus, The Uncertain Promise of Predictive Coding, 99 IOWA L. REV. 1691, 1701 (2014) (discussing the advocation for predictive coding in discovery). 87 See Tommie Duncan, 2016 Year-End Report 3, Judicial Panel on Multidistrict Litigation (2017) (on file with author).
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clustering verdicts that are difficult to average and threaten the chances of a global deal.88 Federal judges rely on global settlements in much the same way that agencies rely on new rules and guidance to expedite cases—brokering deals that inevitably rely on grids, matrices, or other routine systems that pay deserving claimants according to a narrow criteria.89
C. CENTRALIZED POLICYMAKING VERSUS INFORMAL CASE MANAGEMENT
Both centralized policymaking and informal case management have thus allowed agencies and courts to narrow the scope of issues for trial, increase staff, test petitioners’ appetites for different remedies and outcomes, and even use electronic databanks to sort and streamline the cases they hear on their dockets. But each approach offers different promises and perils. When designed appropriately, new rules in agencies may promote more consistent outcomes, more fulsome data about the cases adjudicators must handle, and more opportunities for democratic reform to systemic problems. But new rules also may cut too broadly, fail to account for vulnerable, unrepresented parties, or require new training and time consuming procedures that aggravate existing delays. By contrast, the informal case management used in federal courts offer flexible tools designed to
88 Hon. Dan Aaron Polster, Trial Judge As Mediator: A Rejoinder to Judge Cratsley, INTER ALIA (Spring 2008), https://fba-ndohio.wildapricot.org/Resources/Documents/ Spring%202008.pdf (“I have yet to meet a party who truly wanted the multi-year process of discovery, trial and appeal.”); Hon. Alvin K. Hellerstein et al., Managerial Judging: The 9/11 Responders’ Tort Litigation, 98 CORNELL L. REV. 127, 161–63 (2012) (stating bellwether trials do not provide “sufficient information to effect a wholesale global settlement”); Hon. Brian R. Martinotti, Complex Litigation in New Jersey and Federal Courts: An Overview of the Current State of Affairs and a Glimpse of What Lies Ahead, 44 LOY. U. CHI. L.J. 561, 575 (2012) (“[I]f the parties and counsel are in the midst of successful settlement discussions, a bellwether trial that results in a verdict outside the range of settlement—i.e., an outlier—may empower a party to go forth with the litigation and cause negotiations to break down.”). 89 See Nathaniel Donahue & John Fabian Witt, Torts as Private Administration, 105 Cornell L. Rev. __ (forthcoming 2019) (manuscript at 48) (describing use of large administrative settlements in mass torts), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3349858; Deborah R. Hensler, Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Tex. L. Rev. 1587, 1613-15 (1995) (observing that mass tort settlements tend to take the form of a “grid or matrix” which award claimants “different cash values on the basis of evidence of causation, disease, or injury severity”).
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respond to novel claims and problems. But those same solutions may lack the predictability, consistency, and the comprehensive data to ensure new cases are handled effectively.
1. The Limits of Centralized Policymaking Rule changes promise more predictable case handling, but new policies and programs have their limits. First, the prospective nature of rulemaking will not always help with surges of new cases, particularly immigration, veterans, debt relief and other mass adjudication claims that arise in response to sudden changes on the ground. When agencies cannot predict new case filings, they may lack time to develop responsive new policies. And because the law disfavors retroactive rulemaking, new rules may not always address the claims filed by those who relied on existing procedures.90 Take the Department of Education. Following the collapse of the Corinthian Colleges and IT&T, two of the largest for-profit colleges in the nation, the Department of Education was deluged with thousands of claims for debt relief every month between 2015 and 2019.91 The Department began hearing claims, but in January 2017, it halted all hearings as it considered new rules for student debt relief claims.92 As the backlog of student applications surged past 100,000 claims, the Department announced new rules for handling claims in December 2017.93 But, following several litigation
90 See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 259 (2012) (holding that fleeting expletives could not be found actionably indecent by the Federal Communications Commission because broadcasters did not have fair notice that conduct was actionable prior to broadcasts); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“[A] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.”). But see SEC v. Chenery Corp., 332 U.S. 194, 202–03 (1947) (approving of retroactive legal rule in adjudication). 91 According to a document released by the Education Department in a January 2018 session, the Department received over 135,000 claims, but as of October 2017, it had only resolved 31,140 of them, mostly during the previous administration. See U.S. Dep’t of Educ., Office of Postsecondary Education, Borrower Defense Claims: Data Analysis, Nov. 2017, https://www2.ed.gov/policy/highered/reg/hearulemaking/2017/borrowerdefensedataanaly sis11118.docx. 92 Interim final rule; delay of effective date; request for comments, 82 Fed. Reg. 49,114 (Oct. 24, 2017) (to be codified at 34 C.F.R. pts. 668, 674, 682, and 685). 93 The Department stated on December 20, 2017 that it “approved for discharge 12,900 pending claims submitted by former Corinthian Colleges, Inc. students, and 8,600 pending claims have been denied,” using different formulas than those adopted as part of the 2016
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challenges, federal district courts set them aside, observing that the new rules upset the expectations of the students and required, at a minimum, a more fulsome explanation before applying those rules to already filed claims.94 Eighteen months later, in March 2019, the Education Secretary still could not tell lawmakers whether any new applications for relief had been approved.95 Second, new administrative programs may not respond to claimants’ needs. At the time of this writing, for example, few veterans appear to have adopted the VA’s test RAMP program. Although between 15,000 and 30,000 invitations to opt into RAMP were sent to vets, only 391 veterans with 554 appeals elected to participate as of January 31, 2018, about 1% of those eligible.96 Although the VA speculated that veterans would prefer to adopt a “fast track” that avoided appeals or additional fact-finding, the solution was not based on specific information about the actual claims filed by different groups of veterans. In such cases, an informal case management process, where adjudicators work with teams of veterans’ attorneys or organizations to understand already-filed claims could have produced more targeted solutions for different categories of claims. In some cases, the inability of policymakers to quickly respond to surges of new filings may force administrative adjudicators to make Solomonic choices over how to devote their limited resources. For example, following a surge of new claims at the September 11 Victim Compensation Fund, a federal agency that compensates first responders of the September 11 attacks for toxic exposure, the Special Master overseeing the fund announced he was left with no
Regulations. See Press Release, U.S. Dep’t of Educ., Improved Borrower Defense Discharge Process Will Aid Defrauded Borrowers, Protect Taxpayers (Dec. 20, 2017). 94 See, e.g. Bauer v. DeVos, 325 F. Supp. 3d 74, 109 (D.D.C. 2018) (noting that there was an “unacknowledged and unexplained inconsistency” that was “central to the Department’s decision”). 95 See Daniel Douglas-Gabriel, ‘Don’t you have a heart?’: Senate Democrats Press DeVos on Backlog of 140,000 Student Debt-Relief Claims, Wash. Post, Mar. 28, 2019, https://www.washingtonpost.com/education/2019/03/28/dont-you-have-heart-senate- democrats-press-devos-backlog-student-debt-relief-claims/?noredirect=on. 96 James Clark, Not Enough Veterans Are Opting Into The VA’s Test Plan To Fix Appeals, TASK & PURPOSE (Feb. 1, 2018), https://taskandpurpose.com/not-enough-veterans-opting-vas- test-plan-fix-appeals; GOV’T ACCOUNTABILITY OFFICE, supra note 9, at 22 n.39.
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choice but to cut back all payments, across the board, by up to 70% to victims and their families.97 Third, once adopted, new rules can even exacerbate backlogs, as administrative judges struggle to interpret how they apply in novel situations. The Social Security Administration’s medical-vocational grids for years neglected to address claimants suffering from mental disabilities.98 Twenty-five years after the Social Security Administration issued vocational guidelines, courts and agency adjudicators continue to dispute how they apply to these claimants, undermining the consistency and efficiency that the agency’s rules were meant to promote.99 In the area of immigration, some have warned that new standards for asylum claims may add to existing backlogs as immigration judges struggle to interpret and apply them.100 Finally, centralized policies can create perverse incentives that compromise an individual’s right to an impartial adjudication. For example, as the Social Security Administration faced a new surge of claims in the 1980s, the administration began surveying adjudicators and increased each ALJ’s target to 45 decisions per month in 1982.101 The agency said it was not formally reviewing judges’ performances based on their productivity or allowance rates, but “it exerted informal pressure by, for example, allocating support
97 See Shane Goldmacher, With Ground Zero Payments Slashed, a Push to Replenish a 9/11 Fund, N.Y TIMES, Feb. 28, 2019 (“[F]und’s special master announced in mid-February that it would be necessary to slash in half the payouts for those already waiting in line . . . .”); Rich Calder & Bob Fredericks, 9/11 Compensation Fund to Slash Payments as New Claims Surge, N.Y. POST, Feb. 15, 2019 ([C]laims filed after Feb. 1 of this year would see deeper cuts of up to 70[%] . . . .”). 98 See Jon. C. Dubin, Overcoming Gridlock: Campbell After a Quarter-Century and Bureaucratically Rational Gap-Filling in Mass Justice Administration in the Social Security Administration’s Disability Programs, 62 ADMIN L. REV. 937, 942 (2010) (“Section 200.00(e) acknowledges that nonexertional limitations are not factored into the calculus of claimant limitations that form the basis of the job incidence and work adjustment conclusions that are administratively noticed in the grid.” (citing 20 C.F.R. pt. 404, subpt. P, app. 2 §200.00(e) (2010))). 99 See id. at 942–43 (finding courts and agency adjudicators divided on proper methodology for using medical-vocational guidelines). 100 Immigration Court Backlog Surpasses One Million Cases, TRAC IMMIGRATION (Nov. 6, 2018), https://trac.syr.edu/immigration/reports/536/ (“Clearly the changes the Attorney General has mandated have added to the court’s challenges.”). 101 S. Subcomm. on. Oversight of Gov’t Mgmt. of the Comm. on Gov’tl Affairs, 98TH CONG., REP. ON THE ROLE OF THE ADMINISTRATIVE LAW JUDGE IN THE TITLE II SOCIAL SECURITY DISABILITY INSURANCE PROGRAM 2 (Comm. Print 1983).
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staff and office space based on ‘how the ALJ behaved . . . .’”102 Administrative law judges claimed the new policies undermined their “decisional independence” to decide disability claims based on the merits, as opposed to the new metrics imposed from above.103
2. The Limits of Informal Case Management Informal case management allows judges to respond flexibly to the cases before them. But those judgments may also be less predictable, frustrate party autonomy, and lack the same informed development as formal rules adopted following public comment and other data collected by agencies. Informal case management approaches have been a staple of complex litigation since the 1950s, but they vary dramatically in their application.104 Case management orders calling for plaintiffs to produce more evidence, like Lone Pine orders, may also short- circuit the typical process for exchanging information about pending claims.105 Early termination of those claims may, in turn, prevent the parties and the court from understanding the full scope of the defendants’ liability.106 Informal case management can also empower judges at the expense of parties and counsel.107 Judges that delegate the management of discovery disputes, motion practice and other tasks
102 Ames et al., supra note 34, at 20. 103 See Ass’n. of Admin. Law Judges, Inc. v. Heckler, 594 F. Supp. 1132, 1133, 1142 (D.D.C. 1984) (challenging the Social Security Administration’s centralized review program on the grounds that it compromised adjudicator’s “decisional independence”). 104 See, e.g., Alexandra D. Lahav, Procedural Design, 71 VAND. L. REV. 821, 861–63 (2018) (highlighting variations in case management approaches). 105 See Lore v. Lone Pine Corp., 1986 WL 637507, *4 (N.J. Super. Ct. Law Div. 1986) (requiring that plaintiffs’ attorneys “be prepared to substantiate, to a reasonable degree, the allegations” at the outset of a case). Lone Pine orders often require plaintiffs “to make a preliminary showing of evidence supporting their claims.” 15 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROC. § 3866 n.22 (4th ed. 2017); see also Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1167–68 (11th Cir. 2014) (collecting cases approving and disapproving of use of Lone Pine orders) For a comprehensive critique of Lone Pine orders, see Engstrom, supra note 28. 106 See, e.g., Lahav, Procedural Design, supra note 104, at 863 (highlighting how Lone Pine orders, mini-trials preceding class certification, and other procedural innovations aimed at “culling cases” may have the “effect of suppressing information and promoting settlement more often than rectitude”). 107 Howard M. Erichson, The Role of the Judge in Non-Class Settlements, 90 WASH. U. L. REV. 1015, 1023–24 (2013); Judith Resnik, From “Cases” to “Litigation,” 54 LAW & CONTEMP. PROBS. 5 (1991).
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to special masters, steering committees, and liaison counsel may deprive individual litigants of the power to steer their own cases.108 In many cases, parties may be left with take-it-or-leave-it global settlements that do not reflect their interests.109 In even the rare case that goes to trial, the judge may shape strategy as much as the parties. For example, judicial decisions to bifurcate questions of causation and damages separately from the other issues in a trial can undermine the litigants’ power to tell their own story.110 In one case, plaintiffs objected when a federal judge decided to try questions about whether Monsanto’s signature Ready Roundup caused cancer in isolation from liability and damage questions.111 Plaintiffs argued that the decision interfered with their ability to provide jurors with a full understanding of the defendant’s conduct that stunted the development of the science at issue.112 In another case, Judge Hellerstein ordered plaintiffs in the September 11 litigation to try damages first, raising similar concerns about plaintiffs’ ability to tell their story and defendants’ power to raise meritorious defenses.113 In both cases, the court hoped that trying causation or damages out of order would lead to a quick resolution. But the parties worried that such case
108 See MANUAL FOR COMPLEX LITIGATION, FOURTH, supra note 73, at § 10.221 (defining the role of a “liaison counsel”); Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. REV 71, 88 (2015) (“The individually retained attorney has no power to appoint or discharge the leaders who assume control of her clients’ cases. Instead, she is relegated to an observer who can do little more than complain that the lead lawyers have violated their fiduciary obligations to the whole group.”); Silver & Miller, supra note 33, at 132–35 (detailing conflicts between lead and non-lead counsel). 109 Silver & Miller, supra note 33, at 124 (“Being stuck forever in a court that cannot preside over a trial and that wants a global settlement at all costs, plaintiffs caught up in MDLs have little bargaining leverage.”). 110 Jennifer M. Granholm & William J. Richards, Bifurcated Justice: How Trial-Splitting Devices Defeat the Jury’s Role, 26 U. TOL. L. REV. 505, 513–14 (1995) (critiquing distortive effects of bifurcation); Elizabeth G. Thornburg, The Managerial Judge Goes to Trial, 44 U. RICH. L. REV. 1261, 1302 n.210 (2010) (same). Cf. Old Chief v. United States, 519 U.S. 172, 183 (1997) (cautioning that judges should make evidentiary “calculations with an appreciation of the offering party's need for evidentiary richness and narrative integrity in presenting a case”). 111 Tina Bellon, Plaintiffs in Monsanto Roundup MDL Call Trial Bifurcation “Unheard Of,” REUTERS LEGAL (Dec. 17, 2018), https://www.reuters.com/article/bayer-glyphosate/plaintiffs- in-monsanto-roundup-mdl-call-trial-bifurcation-unheard-of-idUSL1N1YM1QV (quoting the plaintiffs’ description of the bifurcation as “unorthodox” and “ill-advised”). 112 Id. 113 Anemona Hartocollis, Little Noticed 9/11 Lawsuits Will Go to Trial, N.Y. TIMES, (Sept. 4, 2007), https://www.nytimes.com/2007/09/04/nyregion/04cases.html?_r=1&hp&oref=slogin.
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management decisions undermined their ability to frame their own positions.114 Finally, many of the informal rules developed by judges to organize complex litigation have not been subject to rigorous testing or ventilation.115 Different approaches to case management have been shared in judicial conferences, symposia, and as anecdotes in opinions and scholarship. But no recent guide collects practices used by judges and attempts to compare and test those techniques against outcomes. The Manual for Complex Litigation, perhaps the most comprehensive survey of federal judicial practice, has not been updated in fifteen years.116 Little data exists about how successful and quickly claimants receive compensation after settlements were reached in multidistrict litigation.
II. EXCEPTIONS FOR FEDERAL COURTS AND AGENCIES
Courts and agencies do not have to rigidly adhere to either rulemaking or case management techniques to respond to delay. In fact, in some cases, administrative judges have experimented with novel case-handling techniques, including the use of special masters, pilot programs and aggregate adjudication. Federal courts have also relied on procedural rulemaking, policy guidance and data analysis. Such experiments suggest that courts and agencies can learn from each other and adopt more hybrid approaches to rising case volumes and backlogs. Among other things, agencies may use case management techniques to narrow the scope of adjudication or to learn more about pending claims and respond to surges of new claims. Some agencies, for example, have used case management techniques to narrow the scope of issues they need to hear in large numbers of pending cases. Long before backlogs of student claims for debt relief exceeded 100,000 claims, the Department of Education appointed a
114 Id; see also Nora Freeman Engstrom, The Trouble with Trial Time Limits, 106 GEO. L.J. 933, 980 (2017) (“As judges’ power grows, both litigants’ and jurors’ power ebbs, pulling us ever further from our traditional adversarial roots”). 115 See, e.g., Noll, supra note 36, at 36 (“Nor are procedural innovations in MDL subject to the same level of after-the-fact scrutiny as major agencies decisions. Most of the important decisions in an MDL do not result in the entry of judgment, and thus are insulated from immediate appellate review.”) 116 See generally MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004).
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special master, Joseph A. Smith.117 His hope was to develop a rational hearing process to respond to mounting number of claims.118 Given the daunting task of individually adjudicating thousands of claims, Special Master Smith proposed an innovative aggregate procedure, much like those used in federal and state courts.119 Within less than a year, the Special Master adjudicated over a combined 11,000 claims for student debt relief.120 Similarly, when over 5,000 parents claimed that a vaccine additive called thimerosal caused autism in children, the National Childhood Vaccine Program relied on three “Autism Omnibus Proceedings” to pool all the individual claims that raised the same highly contested scientific questions.121 In the words of one Special Master, omnibus proceedings have “turned out to be a highly successful procedural device,” facilitating settlement of individual cases and allowing those cases that proceed to a hearing to be resolved “far more efficiently than if we had needed a full blown trial, with multiple expert witnesses, in each case.”122 Allowing agencies to resolve common questions in a single hearing has helped agencies to narrow the scope of adjudication in a way that protects litigants, but without running afoul of norms against retroactive rulemaking. And, as important, it has helped agencies retool existing rules based on their experience with surges of new cases. The Department of Education relied substantially on Special Master Smith’s experience as it formulated new rules for debt relief in 2016.123 The National Child Vaccine Injury
117 United States Department of Education, First Report of the Special Master for Borrower Defense to the Under Secretary (2015). 118 Id. 119 Id. (“Wherever possible, the Department will rely on evidence established by appropriate authorities in considering whether whole groups of students (for example, an entire academic program at a specific campus during a certain time frame) are eligible for borrower defense relief. This will simplify and expedite the relief process, reducing the burden on borrowers.”). 120 U. S. Dep’t of Educ., Fourth Report of the Special Master for Borrower Defense to the Under Secretary (2016), https://www2.ed.gov/documents/press-releases/report-special- master-borrower-defense-4.pdf. 121 Cedillo v. Sec’y of Health & Human Servs., No. 98- 916V, 2009 WL 331968, at *11 (Fed. Cl. Feb. 12, 2009), aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010). 122 Id. (emphasis omitted). 123 See U.S. Dep’t of Educ., Title IV Loans, Borrower Defenses, Meeting Summary, Feb. 17– 19 (2016) (noting Special Master Smith “answered . . . questions about the process he and his team are using to assess loan discharge claims…in response to the Committee’s request for
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Compensation Program has similarly updated its compensation grids in response to data collected in its omnibus proceedings.124 The federal courts have, at times, also relied on rulemaking, administrative guidance and data analytics to manage caseloads across the federal judiciary. The federal multidistrict litigation statute, itself, reflects judicial lobbying for rules in response to deluge of price fixing claims in the 1950s to avoid duplicative discovery and narrow issues for trial in big cases.125 More recently, federal district courts have adopted local rules for recurring issues in large cases, including appointment of counsel and litigation funding, as well as pilot programs to resolve certain categories of disputes.126 Federal courts in the past also have relied on manuals to provide guidance for the disposition of large numbers of claims, including the 1951 Prettyman Report on Procedure in Antitrust and Other Protracted Cases,127 the 1960 Handbook of Recommended Procedures for the Trial of Protracted Cases,128 in 1969, the Manual for Complex and Multidistrict Litigation,129 and in 1973, the Manual for Complex Litigation.130 In much the same ways that agency adjudicators rely on manuals and centralized policy an opportunity to learn more about his work”); U.S. Dep’t of Educ., Title IV Loans, Borrower Defenses, Meeting Summary, Jan. 12–14 (2016) https://www2.ed.gov/policy/highered/reg/hearulemaking/.../bd2-mtg1summary.doc (noting that Special Master Joseph A. Smith briefed the Committee on the status of his “work to develop a process for discharging loans, [the] loans that had been discharged, and expectations for the discharge of loans in the near future”). 124 See 60 Fed. Reg. 7678 (1995), revised 62 Fed. Reg. 7685, 7688 (1997). 125 Bradt, supra note 14, at 869. 126 The U.S. District Court for the Northern District of California recently revised its procedural guidance for class actions. Procedural Guidelines for Class Action Settlements, United States District Court for the Northern District of California, https://www.cand.uscourts.gov/ClassActionSettlementGuidance (last updated Dec. 5, 2018). It also changed its standing orders for judges handling complex cases. Contents of Joint Case Management Statement, Standing Order for All judges of the Northern District of California, https://www.cand.uscourts.gov/filelibrary/373/Standing_Order_All_Judges_11.1.2018.pdf (last updated Nov. 1, 2018). 127 Judicial Conference of the U.S., Procedure in Anti-Trust and Other Protracted Cases, 13 F.R.D. 41, 62 (1951). 128 Alfred P. Murrah, Foreword to Judicial Conference Study Grp. On Pretrial Procedure in Protracted Litig.,HANDBOOK OF RECOMMENDED PROCEDURES FOR THE TRIAL OF PROTRACTED CASES 5, 5 (1960). 129 ALFRED P. MURRAH ET AL., MANUAL FOR COMPLEX AND MULTIDISTRICT LITIGATION (1969). 130 ALFRED P. MURRAH ET AL., MANUAL FOR COMPLEX LITIGATION (1973).
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guidance,131 Federal Judicial Center publications, like the Manual for Complex Litigation and the Manual for Scientific Evidence, continue to be influential in informing and unifying the ways that federal judges manage large and complex cases.132 Finally, federal courts have relied on pilot programs and data analytics from the Federal Judicial Center, to identify the type of cases filed in federal courts, where those cases are filed and the time courts take to resolve them.133 To assist courts in managing their civil and criminal caseloads, the Federal Judicial Center has even created electronic case management “dashboards,” which show courts how slowly or quickly they terminate groups of cases relative to the national average.134 According to the Federal Judicial Center website, the dashboard “allows a court to see its overall processing time on each nature of suit/nature of offense . . . and then drill down to the underlying case/defendant information.”135
131 Nicholas R. Parillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 YALE J. REG. 165, 243 (2019) (“Although [policy] guidance documents are not binding on the agency, deviating requires a ‘rationale.’”); Thomas W. Merrill, The Accardi Principle, 74 GEO. WASH. L. REV. 569, 598 (2006) (noting that agencies must give a reason when deviating from an established agency precedent to avoid ‘arbitrary and capricious’ review). 132 Although non-binding, the Manual for Complex Litigation is the “pre-eminent resource on many of the issues confronting judges and lawyers handling complex cases.” DAVID F. HERR, Introduction to ANNOTATED MANUAL FOR COMPLEX LITIGATION (FOURTH) 3 (2018). 133 See Federal Judicial Center, Case Management Dashboards (Aug. 31, 2017), https://www.fjc.gov/content/324993/case-management-dashboards (displaying the dashboard of one such case management program). 134 Id. 135 See Federal Judicial Center, Civil Case and Criminal Defendant Processing Dashboard Instructions: Terminated Civil Cases and Criminal Defendants 2014‐2016, https://www.fjc.gov/sites/default/files/2017/2014-2016%20Combined%20Dashboard %20Instructions%20Final.pdf (“By looking at cases/defendants that terminated slowly in the past, courts can learn to better manage caseload in the future.”).
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This “drill down capability” allows courts to identify where additional resources may be needed to resolve cases more quickly. To be clear, the Federal Judicial Center has not gone to the same lengths in embracing data analytics as agencies like the Social Security Administration, which tracks case flow and codifies actual decisions of its hearings officers to identify sources of delay.136 But, by tracking cases across districts, the Federal Judicial Center hopes to similarly improve decision making and reduce relays.
III. JUDICIAL POWER TO RESPOND TO DELAYS
Experiments with agency case management and centralized judicial planning illustrate how each system can learn from each other to respond to delay. But, these experiments remain the exceptions. The Administrative Conference of the United States’ recent “Model Rules for Adjudication,” for example, do not include aggregation procedures because they are so rare in administrative adjudication.137 Rule changes that brought about the federal multidistrict litigation statute, as well as several versions of the Manual for Complex Litigation, generally increased federal judges’ authority to informally respond to novel cases without specific rules.138 This final section briefly explores one plausible reason for this: adjudicative power. Divergent approaches to delay reflect a more fundamental division about how much power courts and agencies vest in judges. When agencies rely on rulemaking, manuals, staffing arrangements and data analytics, they often subordinate administrative judges’ power to others in the administrative bureaucracy and in Congress. Informal case management, by
136 See Social Security Administration Manual: Chapter TQ – The Office of Analytics, Review, and Oversight, SOCIAL SECURITY ADMINISTRATION, https://www.ssa.gov/org/orgOARO.htm (last visited Apr. 15, 2019) (outlining the mission of the Office of Analytics, Review, and Oversight). 137 See ADMIN. CONF. U.S., MODEL ADJUDICATION RULES vi (ACUS 2018), https://www.acus.gov/sites/default/files/documents/Model%20Adjudication%20Rules%209.13 .18%20ACUS_0.pdf (“The Working Group eschewed recommended rules, such as one concerning aggregate litigation, that would likely affect only a small number of agencies or types of adjudication, or require significant agency-specific revisions.”). 138 See Bradt, supra note 14, at 847 (“[W]hat makes MDL such an effective means of resolving mass litigation is also what provokes intense criticism: the almost unlimited discretion of the district judge that the Panel puts in charge of the litigation.”).
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contrast, has enhanced the authority of the federal district court judge to resolve massive disputes with large policy consequences.139 These divergent approaches to delay may reflect structural and constitutional differences between courts and agencies. But, in fact, combining centralized approaches and informal case handling, may actually inform and improve the ways that agencies make policy, while ensuring the federal judges resolve similar cases consistent with the best information and the rule of law.
A. DECISIONAL INDEPENDENCE IN FEDERAL COURTS AND AGENCIES
The decisional independence afforded to Article III judges to develop their own procedures to respond to delay reflects many factors, including: (a) the long history of our far-flung lower district courts, (b) a healthy respect for regional differences between districts where federal courts reside, and (c) fundamental concerns about our separation of powers. First, Article III judges historically enjoyed a lot of freedom over how they managed cases. For the first century of the republic, each lower court was an autonomous unit that responded to the distinct needs of each state it operated in.140 A single district judge appointed everyone in the court “from court clerk to bankruptcy receiver.”141 When in the early Twentieth Century, Chief Justice Taft and Hughes sought to centralize court administration with a new “judicial conference” to respond to delays, Congress initially resisted. Members of Congress worried that too much centralization would undermine lower federal courts’ independence under Article III.142 One Senator called the bill “an assault upon the independence of the judiciary, which may grow and grow and sap and undermine that independence.”143 Later reforms, like the 1968 Multidistrict Litigation Act and the 1990 Civil Justice Reform Act, continued to give judges vast discretion over how they responded to surges and delays on their dockets. Second, resistance to central management also reflects a longstanding commitment to regionalism in the lower federal
139 See Bradt, supra note 14, at 916. 140 FISH, supra note 12, at 12. 141 Id. 142 Id. at 36–37. 143 67 CONG. S4863 (daily ed. March 31, 1922) (statement of Sen. John K. Shields).
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courts. When Congress rejected Justice Taft’s proposal to create a “flying squadron” of judges for districts with heavy caseloads, Taft observed that resistance reflected distrust of a unified judiciary: “Gentlemen have suggested that I would send dry judges to wet territory, and wet judges to dry territory . . . .”144 Southern democrats were particularly concerned about the impact of centralized judicial administration on “judicial localism,” issuing dark warnings of “carpetbag judges” from the North unfamiliar with southern practice.145 Later, when drafters of the federal multidistrict litigation statute hoped to coordinate surges of new complex cases, they limited consolidations to “pretrial” proceedings, remanding cases back to local district courts for trial. They similarly did so to insulate the law from attack by local judges “who might fear the invasion of their jurisdiction.”146 Regional and political polarization has only made procedural rulemaking in the Judicial Conference more difficult after Congress imposed new open meeting requirements in the 1980s.147 Finally, there are separation of powers concerns. Efforts in Congress to organize, control and discourage delay may compromise “consistency across cases, fairness among litigants, and perhaps even decision quality.”148 Those concerns work the other way too. In the early twentieth century, some feared that more uniform administration inside the courts to reduce delay would allow judges to organize and produce a “propaganda organization for legislation for the benefit of the Federal judiciary.”149 Administrative adjudicators, by contrast, have not enjoyed the same level of independence or commitment to regionalism. Administrative adjudicators, by contrast, often operate inside a bureaucracy that formulates and enforces national policies, and
144 See William H. Taft, Possible and Needed Reforms in the Administration of Justice in the Federal Courts, 8 American Bar Ass’n J. 601–602 (1922). 145 See Marin K. Levy, Visiting Judges, Cal. L. Rev. (2019); 62 Cong. Rec. 204 (1921) (statement of Rep. Stevenson). 146 Bradt, supra note 14, at 839. 147 Burbank & Farhang, supra note 25, at 1546 (showing how Congress “has made it more difficult to use the rulemaking process for major civil litigation reform” though open meeting requirements). 148 Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List (revised 2018)(manuscript at 3), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2989777. 149 Fish, supra note 12, at 36.
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necessarily, lack the same degree of decisional independence as Article III judges.150 Unlike federal judges, administrative adjudicators are supervised by officers with authority to formulate new rules and policies.151 More recent challenges to the appointment and removal of independent administrative judges have raised new questions about the extent to which administrative adjudicators can be insulated from those who head departments and agencies.152 Second, and related, agencies have embraced centralized rulemaking as a more participatory and transparent way to make decisions than case-by-case adjudication.153 In the 1960s and 1970s, scholars and courts increasingly encouraged agencies to use rulemaking as a way to open up the administrative process, giving “citizens a sense of involvement in the process of government and increases confidence in the fairness of government decisions.”154 To be sure, the obstacles agencies face when designing new rules that can survive judicial and congressional review has sometimes made agencies turn to policy guidance and other forms of centralized control that do not require public comment.155 Even so, as agencies focused on nationwide rulemaking, they have deemphasized
150 ADMIN. CONF. OF THE U.S., RECOMMENDATIONS AND REPORTS (Vol. II) 771, 801-802 (1992) (explaining that the agency has the ability to “reverse a hearing examiner’s decision for policy reasons”). 151 5 U.S.C. § 557(b); see also Richard J. Pierce, Political Control Versus Impermissible Bias In Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U. Chi. L. Rev. 481, 483 (1990) (defending political control over agency adjudication to promote accountability in agencies “more suited to a constitutional democracy”) 152 See Exec. Order No. 13843, § 1, 83 Fed. Reg. 32755 (July 10, 2018) (exempting administrative law judge hiring from non-political competitive examination process and permitting them to be hired by political officers that head agencies); see generally Lucia v. SEC, 138 S. Ct. 2044 (2018) (considering appointment of administrative law judges under the Appointments Clause). Christopher J. Walker, Constitutional Tensions in Agency Adjudication, 104 IOWA L. REV. _ (forthcoming 2019) (discussing the importance of political accountability, and the dangers of political control, in agency adjudication), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3289634 153 Sant’Ambrogio & Zimmerman, supra note 43, at 2067. 154 Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1761 (1975). See also Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 483 (2003) (describing how this model “recreated the administrative process into one that would maximize the satisfaction of popular preferences.”). 155 Magill, supra note 30, at 1411 (noting “increased reliance on guidance documents”).
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individual administrative adjudicators’ role in formulating new policies and procedures.156 Third, agency involvement in policymaking, far from undermining separation of powers, is often seen as a way to promote informed and accountable lawmaking in the other political branches. Unlike the federal judiciary, federal agencies have a Constitutional obligation to work with Congress to create new policies when agency regulations fall short.157 Many agencies also frequently work with political bodies, like Congress, state legislatures, and other federal and state agencies to formulate new laws and regulations.158 Since the earliest days of the Republic, political branches have relied on administrative agencies for information about how federal law was interpreted and applied across the country. 159
B. COMBINING CENTRALIZED RULEMAKING AND INFORMAL CASE MANAGEMENT CAN EFFECTUATE POLICY AND PROMOTE INDEPENDENT DECISIONMAKING
But the differences between courts and agencies should not be overstated. Since the 1920s, federal judges have increasingly operated as part of a larger bureaucracy that is capable of collecting data, developing rules and issuing guidance.160 The Administrative
156 There are some notable exceptions. The FTC and the National Labor Relations Board (NLRB) generally avoid rulemaking and rely solely on adjudication to make policy. See, e.g., Mark H. Grunewald, The NLRB’s First Rulemaking: An Exercise in Pragmatism, 41 Duke L.J. 274, 274 (1991) (noting NLRB’s almost exclusive reliance upon adjudication); Paul R. Verkuil, The Purposes and Limits of Independent Agencies, 1988 Duke L.J. 257, 263 (noting FTC’s heavy reliance upon adjudication). 157 J. Gregory Sidak, The Recommendation Clause, 77 GEO. L.J. 2079, 2081–82 (1989) (noting that “James Madison’s notes . . . reveal that the Framers explicitly elevated the President’s recommendation of measures from a political prerogative to a constitutional duty . . . .”). 158 Adam S. Zimmerman, Federal Agencies in the Statehouse (unpublished manuscript on file with author) (canvassing federal agency efforts to influence state legislation). 159 Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1829, 116 YALE L.J. 1636, 1661–63 (2007) (describing the Treasury Department’s administration of the 1807 Embargo Act). 160 Judith Resnik, Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 IND. L.J. 823, 863 (2012) (“Taft persuaded Congress to create twenty-four new lower court judgeships which, given the 126 judgeships that had been authorized as of 1914, grew the workforce by more than 20[%].”); Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 IND. L.J.
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Office of U.S. Courts has helped launch pilot programs in response to delays.161 And the work of the Federal Judicial Center, the Judicial Panel on Multidistrict Litigation, and other work between the bench and bar have improved the ways courts collect data about case filings to respond to surges and delays. Similarly, administrative adjudicators have long been entitled to independently manage and decide cases, even though policymakers may review and reverse those decisions.162 Even the most robust views of executive power under the Constitution have still demanded that administrative adjudicators receive latitude to decide facts and law without political interference.163 That commitment to decisional independence emerged during the earliest days of the administrative state,164 and later became embodied in the Administrative Procedure Act (APA).165 The APA gave administrative judges independent power to decide outcomes, subject to final review by the heads of administrative agencies.166 Shortly after the adoption of the APA, courts honored Congress’s
223, 273 (2003) (describing how federal judges gained “the capacity to function as a cohort” over the twentieth century). 161 See John W. Winkle III, Interbranch Politics: The Administrative Office of U.S. Courts as Liaison, 24 JUST. SYS. J. 43, 45 (2003) (describing how the Administrative Office has become the “chief administrative policymaker” for the federal courts). 162 5 U.S.C § 557(b) (1976) (“When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal . . . .”). 163 Myers v. United States, 272 U.S. 52, 135 (1926) (“Then there may be duties of a quasi judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control.”). 164 See, e.g., George Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557 (1996). 165 Congress limited agency power to manage hearing examiners in several ways that are designed to ensure they enjoy some decisional independence. An employing agency, for example, cannot discipline a hearing examiner, 5 U.S.C. § 7521 (2019), determine the compensation of a hearing examiner without good cause, 5 U.S.C. § 5372 (2019), assign a case to a hearing examiner except in random rotation, 5 U.S.C. § 3105 (2019), or most notably, subject a hearing examiner to supervision by any agency employee who engages in “the performance of investigative or prosecuting functions for an agency.” 5 U.S.C. § 554(d)(2) (2019). 166 See Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 132 (1953) (“Congress intended to make hearing examiners ‘a special class of semi-independent subordinate hearing officers . . . .’”).
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intent by limiting agency policymakers’ power to ignore the factual findings of its hearings officers.167 Giving administrative judges authority to informally manage cases can even enhance the agencies’ ability to make policy. When adjudicators can pool information about cases before them, they can establish a better record for administrative policymakers to review and may provide the basis for further administrative rulemaking.168 The Department of Education,169 the EEOC, and the National Childhood Vaccine Injury Compensation Program,170 for example, have amended rules based on procedures that allowed adjudicators to aggregate cases, using complex proceedings to assess evidence pertaining to large numbers of cases or claims. In the 1990s, Social Security Administrative Law Judges informally combined Medicare benefit challenges in what they called “big box cases,” so named for the thousands of appeals arising from the same organization that often arrived together literally in a very large box.171 The unique procedures required to process Medicare claims ultimately lead Congress to create the Office of Medicare Hearings and Appeals in 2003.172 In all of these cases, affording judges the power to manage their cases, complemented efforts to develop more effective policies. Conversely, there is no reason why courts cannot develop procedures, guidance or data analysis of pending claims in multidistrict litigation to respond to surges of new claims when
167 See id.; Universal Camera Corp. v. NLRB, 340 U.S. 474, 495–97 (1951) (recognizing that evidence supporting an agency’s findings of fact on judicial review “may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the [agency’s] than when he has reached the same conclusion”); Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950) (explaining the APA represented an effort by Congress to set forth the “currently prevailing standards of impartiality” to ensure semi-independent hearing examiners). 168 Sant’Ambrogio & Zimmerman, supra note 43, at 2065 (observing that aggregating multiple cases raises the “profile” of such cases in the agency, “enabling the agency to allocate its resources for ALJ review where it matters most--in cases that affect large groups of individuals in agency proceedings. Therefore, while aggregation increases the power of ALJs, it also increases the practical ability of agency heads to review ALJ decisions”). 169 See supra notes 91–94 and accompanying text. 170 See, e.g., Michael D. Sant’Ambrogio & Adam S. Zimmerman, Inside the Agency Class Action, 126 Yale L.J. 1634 (2017) (highlighting how case management procedures have helped various federal agencies, organizations, and programs understand cases before them and shape policy). 171 See id. at 1677-78. 172 OMHA was created by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, § 931, 117 Stat. 2066, 2396-99.
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necessary, without sacrificing judicial independence. Inside the federal courts, a Court Administration and Case Management Committee already evaluates whether unusual case management techniques should be implemented nationwide.173 These may include judicial innovations like free mediation “Settlement Weeks” in the Western District of New York,174 “Discovery Hotlines” in the Eastern District of Texas, where magistrate judges man phone lines to settle discovery disputes on the spot,175 or pilot programs in the Northern District of Illinois that require “parties to make substantial disclosures—including admissions of unfavorable evidence—early in the case.”176 Allowing a central organization inside courts to study and serve as a clearinghouse for successful experiments in mass litigation could encourage more coherent approaches to surges and delays, while respecting decisional independence inside the federal courts.
CONCLUSION
Mass adjudication raises many of the same concerns, whether it takes place inside courts or agencies. Whenever a system faces large volumes of similar cases, adjudicators will struggle to decide them accurately, consistently and fairly. And when they cannot do so, people in those systems improvise. Federal agencies have tended to innovate from the top-down, taking advantage of their discretion to develop new rules, reorganize and hire new staff, and deploy new technologies. Federal courts, lacking the same power to rewrite substantive policies (and the political capital to issue new procedural rules), have relied on
173 28 U.S. Code § 477 (2018) (“Based on the plans developed and implemented by the United States district courts designated as Early Implementation District Courts pursuant to section 103(c) of the Civil Justice Reform Act of 1990, the Judicial Conference of the United States may develop one or more model civil justice expense and delay reduction plans”); Carla Bayles, From Showdowns To Hotlines, Frazzled Judges Get Creative, LAW 360, Mar. 19, 2019, available at https://www.law360.com/in-depth/articles/1140600. 174 United States Courts, Court Declares a Settlement Week to Clear Old Caseload, JUDICIARY NEWS, Jan. 12, 2018 (describing how to “reduce a long backlog of unresolved lawsuits,” Judge Frank P. Geraci “revived a mediation strategy not used by the court since 1995: a settlement week”), available at https://www.uscourts.gov/news/2018/01/12/court- declares-settlement-week-clear-old-caseload. 175 Discovery Hotline, United States District Court for the Eastern District of Texas, http://www.txed.uscourts.gov/?q=discovery-hotline. 176 Bayles, supra note 173.
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experiments launched by individual district judges. Both approaches have their benefits. While centralized policymaking in agencies promises informed, transparent and consistent outcomes, informal case management in courts offers flexible, tailored and timely responses to sudden surges of claims. In some ways, these divergent approaches stem from different views of judicial power in courts and inside agencies. Allowing federal courts to decide cases without interference from judicial bureaucracy has been seen as essential to vindicating individual liberties and rights. For administrative judges, bureaucracy has been seen as essential to promoting efficiency and accountability. As Jerry Mashaw long ago explained, “in a legal culture largely oriented toward court enforcement of individual legal rights, ‘administration’ has always seemed as antithetical to ‘law’ as ‘bureaucracy’ is to ‘justice.”’177 This article has sought to identify how mass adjudication often places unique pressures on adjudication systems—in courts and agencies—to blur those boundaries. High volumes of unexpected cases may require judges to develop creative responses on the ground. When those cases evade appellate review, that adjudication system may also need to find ways to gather information about those cases, evaluate how best to resolve them, and apply those strategies consistently and fairly. Despite differences between courts and agencies, they need not exclusively respond to these kinds of problems from the top-down or the bottom-up. Approaches that combine judicial experimentation and centralization, rather, can complement agencies’ policies and support the judiciary’s commitment to the rule of law in mass adjudication.
177 Mashaw, supra note 24, at 1.
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